Maine Injury Lawyer Blog

June 25, 2012

Victim Demands Stricter Sentences for Drunk Driving in Bangor

The victim of a drunk driving car accident in Bangor is highly upset with the judge’s sentencing. According to The Republic, the victim, who now uses a wheelchair to get around, is asking for stiffer sentences for those who have been charged with drunk driving in the state of Maine.

The driver charged in the case pleaded guilty to aggravated assault and criminal operating under the influence of intoxicants after causing a car crash that left his passenger paralyzed.The plea agreement called for the driver to serve two years for the assault charge and six months for drunken driving. The judge postponed sentencing after the victim asked for a stiffer sentence.

Our Bangor accident lawyers understand that drivers in the state of Maine who are convicted of a first-time drunk driving offense may not face the toughest of penalties. According to Maine’s Bureau of Highway Safety, a first-time offense comes with a possible 90-day license suspension and fines of up to $400. We have some of the most relaxed laws in the country. Recent studies have proven that the tougher the laws and the penalties the less likely drivers are to recommit. When penalties are loose, drivers are more likely to be involved in another incident.

The National Highway Traffic Safety Administration (NHTSA) recently released new statistics illustrating the true risks for alcohol-related car accidents throughout the nation. The most recent statistics report that there were nearly 11,250 people killed in these kinds of accidents in 2010. Hundreds of thousands more were injured. These accidents are so common that they account for about a third of all roadway fatalities.

In the state of Maine, there were nearly 50 people killed in alcohol-related accidents in 2010 alone. These accidents accounted for 30 percent of all traffic accident-related fatalities throughout the year.

Nationwide, drivers with a blood alcohol concentration (BAC) level of 0.08 or higher in fatal accidents in 2010 were four times more likely to have a prior conviction for drunk driving than drivers who were in accidents with no alcohol. This proves the likelihood of drivers to recommit these crimes. Maine needs to toughen its sentences to help to reduce these risks. Year after year, innocent people are taken in these accidents. It’s time to stop it!sThese accidents are completely preventable. All it takes is a little bit of preparation and responsibility.

Before you head out drinking, make sure you’ve got a sober ride home. Designate a driver. The designated driver shouldn’t be the person who has had the least to drink. You can always call a friend or a family member, too. Whatever you do, do not get behind the wheel if you’ve had too much to drink!

June 20, 2012

Teens at High Risks for Accidents in Bangor and Elsewhere

by Peter Thompson & Associates

As we recently reported on our Maine Injury Lawyer Blog, teenage drivers are most likely to be involved in distraction-related car accidents. It’s not only that they’re most likely to be involved in these kinds of accidents, but they’re pretty much most likely to be involved in most accidents.

According to new data from the National Highway Traffic Safety Administration (NHTSA), there were nearly 2,000 teenage drivers who died in motor vehicle accidents nationwide in 2010. In addition to that, there were another 180,000 teen drivers who were injured. The truth of the matter is that car accidents continue to be the leading cause of death for this young age group.In the state of Maine, there were nearly 20 teenage drivers who were killed in auto accidents in 2010. In addition to these driver fatalities, there were also 5 passengers and 6 occupants of other vehicles who were killed in accidents involving young drivers.

This age group is so dangerous behind the wheel that about 10 percent of all of the drivers who were involved in fatal car accidents in Bangor and elsewhere in 2010 were between the ages of 15- and 20-years-old. That’s alarming when you consider how small of a percentage of the driving population that this young age group makes up. Did you know that there were nearly 1,340,000 police-reported accidents from this young age group during this time?

These young drivers are just as dangerous on motorcycles, too. During 2010, there were nearly 220 teenage motorcycle drivers killed and another 5,000 injured in traffic accidents.

You might not believe it, but these young drivers are also likely to be involved in alcohol-related accidents, too!sIn 2010, 30 percent of these young drivers who were killed in car accidents were under the influence of alcohol. About 25 percent of them were legally drunk.

Officials with the Maine Department of Transportation (MaineDOT) urge parents to talk with their teen drivers about the dangers they’re bound to face on our roadways. Be sure to enact household driving rules to help to assist the state’s Graduated Driver’s Licensing (GDL) program. Make sure you lay down the consequences for breaking these rules, too. Awareness and enforcement can help to significantly reduce the risks of accidents for this young driving population.

Teen Driver Safety Tips:

-Make sure teens drive sober. If they’re busted with any amount of alcohol in their system, they could lose their license for a year.

-Always wear a seat belt.

-Make sure that the vehicle is safe to drive. A teen learning how to drive safely does not need to be further distracted by bad brakes or a sticky clutch.

-Drive defensively. Share the road with others.

-Be home before curfew.

-Limit the number of teen passengers in the vehicle.

-Obey all road laws and posted street signs.

June 5, 2012

Work Accidents in Portland and Elsewhere Prevented with Better Ergonomics

by Peter Thompson & Associates

It’s that time of the year, the time when we focus on preventing work-related injuries in Portland and elsewhere. The entire month of June is used by the National Safety Council (NSC) to push for safety both at home and at work. During this time, the campaign will be working to spread the word about the most common forms of preventable injuries across the nation.From the 10th through the 16th of June, officials will be educating workers about the risks of injury associated with poor Ergonomics. Every year, millions of workers are injured because their work areas aren’t designed to fit them and to fit the job they’re doing. It’s important that you focus on proper ergonomics to avoid unnecessary and preventable injuries.

Our Portland injury attorneys understand that ergonomics involves making sure that a work area is designed to get the job done effectively and comfortably. All too often, workers are forced to work in conditions that are uncomfortable and painful. Ergonomics help to prevent injuries related to overexertion and other similar conditions. Ergonomics is especially important for those who work at a desk or on a computer all day. Repeating the same movements in the same position day after day requires a set up that can help to reduce the risks of a variety of conditions.

Every year, there are nearly 3.5 million people who suffer the unintentional injury of overexertion. As a matter of fact, these injuries constitute as the third leading cause of unintentional injury each year in the U. .

Ergonomic Conditions Leading to Injuries:

-Repetitive Motions.

-Vibrations.

-Resting on sharp edges or corners.

-Overexertion while pushing, pulling, stretching, reaching, lowering or lifting.

-Use of Excessive Force.

-Extreme Temperatures.

-Working in Awkward and Uncomfortable Conditions.

-Standing or Sitting for Too Long.

Desk workers are urged to make sure that their computer monitor is placed at least 20 inches away from their face at that it’s leveled slightly above their eyes. You also want to make sure that your keyboard is petitioned in such a way that you wrists can lie flat. It’s also important that your desk chair is adjustable and that it keeps you in an upright, comfortable position. By making just a few adjustments to your work area, you can help to reduce the risks of one of these accidents and can potentially save yourself from a life-altering injury. Make sure your work place is working for you and your safety.

Would you be able to recognize the signs of an ergonomic condition?sIt’s rather simple. You just have to know the signs!sIf you experience any tingling, numbness, pain, swelling, loss of grip strength, clicking or tenderness, you may be suffering from an ergonomic condition and are urged to see a physician immediately. Early recognition and treatment of these conditions may be your best defense against a permanent injury.

May 30, 2012

Defective Products in Bangor and Elsewhere Still in Your Home?

by Peter Thompson & Associates

There may be defective products in your home and you might not even know about it.

We’re talking about defective products that can cause serious injuries in Bangor and elsewhere. Remember the recall that was made earlier this month regarding the inflatable pool slides that were sold by both Walmart and Toys ‘R’ Us?sThe recall of those products didn’t even come until after someone died and several others were injured.

Sometimes that’s just how it works, unfortunately. It’s important for consumers to stay in the loop with the latest recalls to help to make sure that everyone in their home is safe from dangerous products.Unfortunately, even when consumers know about recalls not many return the product or take it in to have the necessary repairs done. As a matter of fact, only about 10 percent of recalled products ever leave a consumer’s home.

Our Bangor product liability attorneys understand that many times it’s up to the consumer to stay educated about dangerous products. Take the recall of the furnaces back in February. Back then, there were about 200,000 furnaces that were recalled, with the same ones being recalled eight years prior. Still, more than 90 percent of the close to 400 accident reports came after the initial recall. This is serious business and consumers need to take these recalls seriously.

“We know that the majority of products that are recalled remain in consumers’ homes,” says Kids in Danger’s Nancy Cowles.

Why don’t consumers ditch the dangerous products?sExperts say there’s a number of reasons. One of the top ones is that they just don’t know. Others say that consumers feel they’re exempt from the risks and that nothing’s going to happen to them. Some say that it’s because since there’s so many recalls a year, consumers just overlook them as false or insignificant alerts. Whatever the case may be, the truth of the matter is that far too many people are being injured and killed by dangerous products long after warnings have been made public.

Cowles says that parents need to continuously check the products in their home and check the Consumer Product Safety Commission‘s recall list often. If you notice that something in your home has been recalled, be sure to remove it immediately. The risks aren’t worth it.

We aren’t able to protect our children from everything, but we are able to make the necessary move to protect them from the products that have already been deemed dangerous.

TIME recently released the most dangerous products that you may have in your home. These products include the Bumbo Baby Seats, the Lasko Box Fans, the Maytag Dishwashers, the Maclaren Strollers (before-2010), the Magnetix Building Sets, all Shades and Blinds from Roman, portable fuel from Gel Fuel, Toy Dart Guns from Family Dollar Store, various Drop-Side Cribs and LG Dehumidifiers.

May 20, 2012

Accidents in Bangor and Elsewhere Down, Not for Motorcyclists

by Peter Thompson & Associates

The number of fatal motorcycle accidents in Portland and elsewhere haven’t let up in two years now. That’s surprising a lot of officials because the number of overall motor vehicle accident fatalities is sitting at its lowest level since 1949, according to the Motorcyclist.

As a matter of fact, there were 26 states that reported increases in their number of motorcyclist fatalities in 2011. Officials are trying to pinpoint why these kinds of accidents haven’t decreased, but they’re coming up with a lot of excuses. The truth of the matter is that motorists, of all kinds, need to be more cautious on our roadways and work together to help make summer travel safer for everyone.”While the MSF applauds the governors and policymakers applying motorcycle-related safety countermeasures and supporting rider training programs, there is still much to be done to improve motorcyclist safety,” said MSF President Tim Buche.

Our Portland accident lawyers understand that nearly 60 percent of all fatal motorcycle accidents are the result of multi-vehicle accidents. Motorcycle riders are urged to take the proper safety precautions, like wearing a helmet. We also urge motorists to be on the lookout for our motorcycle friends. The increase illustrates we’ve got to do something to alter this trend somehow because all of the recent motorcycle safety campaigns don’t seem to be working.

Officials are brainstorming why these accidents haven’t decreased. They’re remaining all too common on our roadways. According to U. . NEWS, there were close to 5,000 motorcyclist fatalities in each of 2010 and 2011. Yet during this time most other accident stats decreased.

Motorcyclist Fatalities – Causes for Increase:

-The improving economy. With more spare funds, officials believe that more motorists are looking for a little sleeker way to get around — a motorcycle.

-The high gas prices. Motorcycles get some of the best gas mileage around!

-The lack of strict motorcycle helmet laws. There are only 19 states across the country that require everyone on a motorcycle to wear a helmet. Currently, there are five states that are looking to repeal the law.

The motorcycle helmet law in the state of Maine is one of the most relaxed in the country. Only motorcycle riders under the age of 18-years-old are required to wear a helmet, according to the Insurance Institute for Highway Safety (IIHS). Riders are asked to practice their own responsibility and to wear a helmet during every ride. It really can be the difference between life and death.

Motorcycle deaths remains as one of the few areas in highway safety in which progress has yet to be seen.

“These fatality figures represent real people — they are family, friends and neighbors,”ssaid Troy Costales, GHSA chairman.

May 15, 2012

Utility Negligence in Bangor Car Accidents

by Peter Thompson & Associates

If you have been in a car accident with a stable object, you may think you cannot recover damages from any other party. But that is not an accurate assessment in allscases.If you have been injured because of a Bangor car accident which was caused by the negligent maintenance of property, you may feel overwhelmed with the thought of how you will collect damages. Having an experienced Bangor injury attorney can give you the peace of mind you need in your case.

Seals v. Morris County is a case arising from a car accident. Seals (plaintiff) was driving his pickup truck on a road in Morris County New Jersey early in the morning. There was snow on the ground, and when the plaintiff tried to step on his brakes, the car continued downhill. The car hit an electric utility pole that was placed several feet from the side of the road. Plaintiff sustained injuries for which he sought damages.

Plaintiff sued Morris County for negligent maintenance of the road he was traveling on, and Jersey Central Power and Light (Electric Co.) for its alleged negligent placement of the electric pole.

The main issues in this case were two-fold. First, the court analyzed whether an electric company could be held liable for negligently placing an electric pole along a public highway. Secondly, whether a county is entitled to claim sovereign immunity where the county was negligent.

This electric pole was placed on county property. The Electric Co. had placed the pole there and had not received any objection to the pole’s placement from the county. There had been previous car accidents that occurred involving the pole which the Electric Co. was made aware of. However, it was company policy at the Electric Co. that the only time it moved electric poles was at the request of the county where the pole is located.

Although the pole was located on county property, the county argued that because there was no Morris County police, the county had no notice that these accidents were occurring there because the municipal police did not notify them. The county further argued that it had not given consent to have that pole placed there, although it had been there for over thirty years.

The Electric Co. argued that although the county had been silent as to the placement of the pole, this silence should be considered assent; thus rendering the Electric Co. immune from the imposition of liability. This argument hinged on state statute that indicates that where a utility company has maintained a utility pole in the same location for ten years, the owner of the land where the pole is placed is presumed to have consented to this placement.

With both the Electric Co. and the county arguing that the other should be held liable under negligence, the court was set decide the matter. Through application of state statute and New Jersey case law, this court held that where a government entity directs a utility company to where utility poles should be placed the utility company is immune from liability. However, the facts of this case indicate that the County had been silent as to the placement of this offending pole thus, conferring ordinary negligence to both the county and the Electric Co.

Thus the rule established in this case is that where a utility company negligently places or maintains an electric pole causing an unreasonable and unnecessary danger to drivers traveling on that road, the utility company can be held liable.

Through this court decision it is seen that the only way a utility company can be immune from liability is where it negligent acts were a result of a direction from a governmental entity.

The issue of whether the county is immune from liability was left to the lower court to determine on remand.

May 5, 2012

The Role of Causation in Bangor Personal Injury Cases: McIlroy v. Gibson

by Peter Thompson & Associates

All accidents are caused by something; however, it is often difficult to establish the cause of an accident after it has occurred and when you were not involved.A recent Maine motorcycle accident case delves into the idea of speculation in the determination of causation in personal injury cases.

McIlroy v. Gibson’s Apple Orchard exemplified the importance of having an experienced Bangor personal injury attorney helping you prove the cause of your recent accident case.

This case began where Charlotte Small (Small) was driving his car through an intersection where he had the right of way. There was a very large sign on the side of the road causing Small to move her vehicle in order to have an unobstructed view of the road. McIlroy (plaintiff) was riding his motorcycle when he saw Small move slightly, thus he maneuvered in an attempt to prevent a collision. Small lost control of his motorcycle. Plaintiff did not collide with Small or any other vehicles but he was seriously injured when his motorcycle turned over.

The issue in this case became what caused the accident. Causation is an integral part of a personal injury claim. Most motorcycle accident cases fall under personal injury, and in order to prove a personal injury case the elements of negligence must be proved by the plaintiff. Negligence is a civil wrong where a party fails to act as a reasonably prudent person would in similar circumstances. There is no requirement that the plaintiff prove that the defendant acted with intent; however, the plaintiff must show the defendant acted carelessly or recklessly.

Negligence consists of four elements that must be proved by the preponderance of the evidence. First, the plaintiff must show that the defendant had a specific duty of care. Next, the plaintiff has to show that the defendant breached this required duty of care. Then, the plaintiff must show that the defendant’s breach of duty was the direct and proximate cause of the plaintiff’s injuries. Lastly, the plaintiff must show damages.

In McIlroy, Small argued that because he had the right of way and did not collide with the plaintiff, he should not be held liable for the injuries the plaintiff sustained. Thus, plaintiff sued Gibson’s Apple Orchard (defendant).

Defendant had placed an eight-foot-square sign advertising their location near the intersection where the plaintiff was injured. Plaintiff argued that because of the size and location of the sign, Small had to sway into plaintiff’s lane in order to have an unobstructed view of the road. Thus, plaintiff said the defendants’ sign was the “proximate cause” of the plaintiff’s accident and injuries.

Proximate cause is where the plaintiff has to prove that the defendant could have reasonably foreseen the plaintiff sustaining injuries as a result of defendant’s carelessness.

In the alternative, the plaintiff argued that because of the size and placement of the sign Small had to maneuver around the sign. This maneuver made plaintiff think that Small was about to pull his vehicle in front and cause a collision, leading plaintiff to lose control of his motorcycle.
This court found that there was evidence to show that the location of the defendant’s sign could have caused the damages plaintiff suffered. Because a reasonable jury could have found this link in causation, the court held that the case needed to be presented to a jury for a determination of damages owed to the plaintiff.

April 25, 2012

What Type of Insurance Benefits are You Entitled to in Your Personal Injury Case?sCasale v. Cranston Answers

by Peter Thompson & Associates

Casale v. City of Cranston is a recent Rhode Island case dealing with issues surrounding insurance coverage and injured on duty benefits.If you have been involved in a car accident in Bangor, it is important to know what insurance proceeds and benefits you are entitled to. Having an experienced Bangor injury attorney can give you the award you deserve to get the medical help you need.

James Casale (Casale or plaintiff) was employed by the City of Cranston (City) as a firefighter. After receiving notification of an emergency, plaintiff was driving a firefighter emergency vehicle to the location of the call. In transit, the emergency vehicle was struck by a vehicle driven by an uninsured driver. This uninsured driver was driving the vehicle negligently, and caused the accident with the emergency vehicle being driven by plaintiff.
As a result of this accident, plaintiff suffered serious injuries which caused him to be unable to perform crucial job related activities for several months. Because plaintiff had been injured while on duty, the city gave him injured-on-duty (IOD) benefits. While receiving these IOD benefits, plaintiff began a claim for uninsured motorist (UM) benefits with his insurance company, Amica Mutual Insurance Company (Amica). This dispute between the plaintiff and the City is a result this plaintiff’s claim with Amica.

Uninsured motorist coverage is a type of insurance benefits offered when you buy your automobile insurance. This type of coverage provides protection if you are involved in an accident with an uninsured driver. Because you cannot collect benefits from an uninsured driver, your insurance company will compensate you. This type of coverage is not standard in every state; however, it is critical to speak with your insurance representative to discuss the option of purchasing this coverage.

In this case, the plaintiff had a UM policy for $100,000. Because the City had already paid the plaintiff a significant amount in IOD benefits, Amica subtracted that amount from the policy limit of $100,000 and gave plaintiff the difference. Upon finding out about this claim, the city argued that the plaintiff was required to pay it back the amount they paid in IOD benefits. Plaintiff countered this argument by claiming that the city was not entitled to this reimbursement and asked the court to make a judicial determination of this.

The City acknowledged that the plaintiff was injured while he was performing his job duties and that he rightfully obtained IOD benefits from the city. However, the city countered the plaintiff’s argument stating that because the plaintiff had received UM benefits from Amica, the city should be reimbursed consistent with a state statute regarding liability to third persons. States have adopted statutes to protect liable parties from situations where the injured victim collects double the damages.

The city reasoned that Amica should be seen as “the person liable to pay damages” under the statute governing liability of third persons for damages. They argued that just as the insurance company steps in the shoes of the uninsured driver and pays benefits to their insured, the insurance company should be treated as the uninsured driver. And the statute the city pointed to stated that where the uninsured driver makes payments to the injured victim, the insurance company is reimbursed for any over-payments.

The lower court found in favor of the plaintiff and refused to award the city with the reimbursement they asked for. This court heard the appeal from the lower court’s decision and found in favor of the plaintiff finding that the City of Cranston was not entitled to reimbursements from the proceeds of plaintiff’s UM benefits.

April 20, 2012

The Court in McCain v. Town of North Providence Says Your Job Title Makes a Difference in Bangor Workers’ Compensation Cases

by Peter Thompson & Associates

Firefighters are one of the most crucial components of our society today. But when safety personnel are injured on the job, statute says they cannot collect benefits under workers’ compensation. They must receive benefits through the states “injured on duty statute.”If you have questions surrounding the benefits you are entitled to in your Bangor workers’ compensation case, our experienced Bangor injury attorneys can help.
McCain v. Town of North Providence is a case that tackles questions surrounding the Rhode Island’s “injured on duty statute.”sThe mayor’s chief of staff in 2001 wrote a memorandum to the town’s fire chief indicating that the town had hired McCain (plaintiff) as a 3rd Class Firefighter. The fire chief then issued an order which formalized this appointment of McCain. Subsequently, McCain received an identification card where he was considered a technician and a member of the town fire department. As a technician or lineman, plaintiff was not considered to be part of the operations division, as he was not obligated to attend fire department training. Plaintiff was responsible for maintaining communication equipment, aiding inspectors from the Fire Prevention Division, and assisting the fire chief in any departmental issue.

Plaintiff was a member of the AFL-CIO (the union) which was exclusively responsible for bargaining for all fire department employees. The union had a collective bargaining agreement (CBA) with the fire department for which all employees of the fire department were subject to.

Five years after he was initially hired, plaintiff was putting a ladder back on a bucket truck when he lost balance and struck his head on a bucket apparatus. Because putting the ladder away was part of plaintiff’s job duties, he was considered to be injured in the line of duty. This classification resulted in the plaintiff receiving injured-on-duty (IOD) benefit payments as of the date of injury in addition to his salary payments. After three years of making these IOD and salary payments the town stopped payments. The town never gave the plaintiff notice and did not give the plaintiff an opportunity to be heard on the issue. Town argued that because plaintiff was not a “sworn firefighter” they had been mistakenly sending these IOD payments to plaintiff. Basically, there was a difference between the IOD benefits and the workers’ compensation related injury benefits.

Plaintiff asked the court to enter a declaratory judgment stating that he was a firefighter under the statutory definition of said title. Additionally, plaintiff wanted the IOD payments to resume.

This court looked to interpretation of the statute to determine whether the plaintiff was considered a firefighter and whether he should be entitled to the IOD benefits. When interpreting statute the court looks to the intent of the legislature in codifying the statute. In this case, the IOD statute was to provide a greater level of benefits to public employees who are injured during work-related activities where their jobs are often dangerous. IOD statutes are seen as a replacement to workers’ compensation in that it provides greater protection to police officers and firefighters. It is noted further that the Workers’ Compensation Act excludes police officers and firefighters from collecting benefits under that act as the legislature encourages states to enact IOD statutes.

The applicable statute says that anyone employed as a member of the fire department is considered a firefighter by the statute. Because the language in the statute is so clear, the court explains that they cannot hold counter to the statute’s clear intent.

Because the statute defines firefighter in such a broad sense, the plaintiff was considered a firefighter who was injured on duty; therefore, IOD benefits should be paid.

April 9, 2012

Bangor Injury Cases: Court in Himmelstein v. Windsor Discusses Liabilty

by Peter Thompson & Associates

Roads are a critical component of our daily lives. We rush along and often take for granted that there will not be any obstructions on the roads we rely on. But have you ever wondered why you have this perception?The law imposes specific duties of care on states and cities. If you have been injured in a bicycle accident in Bangor, it may have been because of the failure of your state or municipality to maintain the streets.

Our experienced Bangor injury attorneys understand that when you have been injured, your main concern should be getting better. Let us concentrate on getting you the justice you are entitled to while you concentrate on recovering from your injuries.

Himmelstein v. Town of Windsor is a highway defect case that arose because the plaintiff was in a bicycle collision with a police radar trailer that was parked on the side of the road. The main question in this case was whether a town can be held liable for injuries the plaintiff suffered as a result of a defect in a state road. There was significant confusion surrounding municipal and state liability, thus the court defined several applicable legal doctrines.

Himmelstein (“Plaintiff”) was riding a bicycle in heavy traffic. This traffic caused the plaintiff to ride onto the outer part of the road, in between the fog line and the curb. On this portion of the road, the city police department had a radar trailer stationed. Plaintiff hit the radar trailer and suffered several physical injuries and economic damages. Because of these injuries and damages, plaintiff sued the town claiming that because they breached their statutory duty of care, the town acted negligently. Plaintiff argued that in the alternative to negligence, the town should be held liable under nuisance.

Negligence is a reason for the imposition of liability where the defendant has a specified duty of care. Statute is often created to impose a duty of care on specific parties. This duty imposed by statute is called a statutory duty of care. In a negligence claim, the plaintiff has the burden of proving the four elements of negligence. These elements are:sthe defendant has a duty of care, the defendant breached their duty, the breach of duty was the direct and proximate cause of the plaintiff’s damages, and the plaintiff must prove damages.

Conversely, nuisance is a principal of civil liability imposed where there is an intrusion on an individual’s rights to be free from injury or distress. Nuisance is comprised of two classifications:sprivate nuisance and public nuisance. Private nuisance is where a property owner or leaseholder is obstructed from their right of quiet enjoyment of property. In order to assert a claim under this theory of private nuisance, the plaintiff is required to have a legal interest in the land that is affected by the intrusion of a third party which causes some type of damage to the plaintiff.

On the other hand, public nuisance is where the acts or omissions of party causes damage or inconvenience to the public at large. This is most commonly seen in the areas of public health, safety, peace and convenience.

In Himmelstein, plaintiff argued that his injuries were the result of the placement of the radar trailer , which should be considered a highway defect. Because of this classification as a highway defect, plaintiff argued that the town created this unsafe condition thus imputing liability onto the town. Furthermore, plaintiff argued that the town had failed to comply with their statutory duty of care when they did not warn the public that the radar trailer was on the side of the road. It was because of this failure to comply with their duty, plaintiff was injured and suffered damages.

Conversely, the town argued that the road where the collision occurred was a state highway and the town is not liable for the maintenance of state highways. Because this was a state highway, the town argued that they had no duty to warn of any unsafe conditions or make the road safe.

Because the town cannot be held liable for the lack of warning and maintenance of a state road, the court entered summary judgment for the town. However, the court did explain that the plaintiff could sue the state for their failure to warn the public of the potential dangers associated with the placement of this police radar trailer.

This case is an example of how important it is to identify the proper parties in your Bangor personal injury case.