Motorcycles are extremely popular. Millions of Americans own and operate them, and unfortunately thousands of those Americans get into motorcycle accidents each year. Much of the advice applicable to automobile accidents applies to motorcycle accidents as well, but motorcycle accidents have their own specific set of concerns that we will outline here. Safety Riding a motorcycle is a uniquely enjoyable and uniquely dangerous way to travel. Statistics show motorcycle riders are sixteen times more likely to die and three times more likely to be injured as automobile occupants. Knowing about common motorcycle injuries can help you make sure that they do not happen to you, which in the long run can save you from the cost of medical treatment, legal fees, and psychological stress.
What to do Immediately After a Motorcycle Accident People involved in a motorcycle accident should follow the same steps concerning what to do following an automobile accident, including remaining on the scene, calling for help, and making as accurate a record as possible of what happened. In addition, motorcyclists should be wary of getting any repairs made to their motorcycles in advance of litigation, since dents to the motorcycle can be important in convincing a court of what occurred during the accident. Motorcyclists should preserve all damage to their clothing for the same reason. Helmets Although research shows that wearing a helmet reduces injury in motorcycle accidents, not all states require it. Twenty states, the District of Columbia, and Puerto Rico required the use of helmets by all motorcycle operators and passengers. Another 27 states make it mandatory only for those under a certain age, usually 18. Colorado, Illinois, and Iowa do not have any laws requiring the use of helmets. These laws have been known to change fairly frequently, and there are advocates on both sides of the issue.
Motorcycle Insurance Except for Washington, all states and the District of Columbia require that motorcyclists have minimal comprehensive insurance coverage. Obtaining insurance and filing a claim under a policy work just as they do when an ordinary automobile is involved, but motorcycle insurance has a few unique features.
For more information on motorcycle accidents and motorcycle safety, please take a look at the following article How to Avoid the Top 10 Most Common Motorcycle Accidents.
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By Elspeth Crawford The intentional torts of assault and battery are often grouped together as if they are one single cause of action. While it’s true that the two frequently appear beside one another, they are two entirely different torts with their own discrete set of requirements. Assault An assault occurs when a defendant gives a plaintiff the impression that they are going to harm him, but for an assault to be actionable the defendant need not actually harm the plaintiff. Assault has two requirements. First, the person committing the assault must act with the intention to cause a harmful or offensive contact with the person of the plaintiff or a third party. Second, the person committing the assault must act in such a way that the plaintiff has the imminent apprehension of contact.
Battery A battery occurs when a defendant intends to cause a harmful or offensive contact with a plaintiff or a third person and actually does cause such a contact. Basically, if you are touched in way that is considered harmful or offensive, the person who touched you has committed a battery.
Consent Consent is a defense to battery. Plaintiffs who consent to batteries before they happened have little chance of prevailing in court. In addition to freely given consent, the law assumes that people consent to ordinary and customary batteries that occur commonly throughout everyday life. For example, a plaintiff who sues a defendant for battery after the defendant bumps into him in a crowded subway car would likely not win the case because the court will hold that the plaintiff gave implied consent for the battery to occur. While assault and battery are separate causes of action, they very often occur together. If plaintiff perceives that a defendant has raised his fist to strike him, and then the defendant actually does strike him, the defendant has committed both an assault and a battery. If you have been the victim of an assault, a battery, or both, you can bring one or more causes of action to recover. By Elspeth Crawford In a perfect world, landlords and tenants can work together without issue, both generously doing their part to keep each other happy and not disturbing their neighbors. In fact, lots of tenant-landlord relationships fit this description, but we've all heard horror stories about the exceptions. And laws that protect both parties have become so complex that understanding your rights can be like herding cats. Since landlord-tenant law varies by state, the key is knowing your rights -- preferably before you even sign your rental agreement. Understanding your state law and the terms of your lease are your best guarantees against future problems. Common Renters' Rights Although renters' rights vary by region, many are pretty predictable. Here's a sample of rights likely to be addressed in your state's landlord-tenant law:
Protect Yourself Before you move in, tour the premises with your landlord, and note -- or better yet, photograph -- any existing damage. When you move out, if your landlord withholds part of your damage deposit, ask for an itemized list of charges and the reason for the charges. If there's a discrepancy between this list and the one you made before moving in, let the landlord know immediately. Keep copies of all correspondence with your landlord, as well as dated records of phone and in-person conversations. If you have a dispute If your landlord takes an action that is illegal in your state or neglects a legality, you probably have grounds for legal action, but consider court as a last resort. First make every effort to resolve the problem by talking with your landlord. This is the simplest and least expensive approach to mediating disputes. If the problem continues, enlist the help of a neutral party or a mediator. Mediators are usually publicly funded and available free or at low cost. To find out whether mediators are available in your area, contact your mayor's or city manager's office and ask to talk with someone about housing disputes or landlord-tenant mediation. If all else fails, you can take financial complaints to small claims court, provided your claim is under a specified amount. Before you take this step, be sure to look up local law regarding your responsibility for attorney fees. Most larger cities offer free or low-cost legal support for tenants in case of a property dispute. You can also contact your state bar association to ask about its lawyer referral program, or check with local service agencies to find out about inexpensive legal clinics. By Elspeth Crawford If you’re thinking about getting a divorce, the odds are very good that you have a lot of stressful issues to consider. The last thing you want to think about is how you’re going to afford your attorney. You’ve probably heard horror stories about how much divorce can cost, and indeed, many divorce attorneys are very expensive. On the other hand, there are many affordable divorce attorneys as well. Selecting the right divorce attorney for your budget requires understanding how divorce attorneys charge for their services, researching divorce attorney fees, and selecting the right attorney. This article will teach you the basics about how divorce attorney fees are calculated. Most of the time, divorce is a contentious procedure. The word “contentious” is a legal term that means that the parties disagree. The disagreement could pertain to any of a number of issues, from who gets custody of the children to how to divide marital assets. The point is that whenever there is a disagreement, there will be an uphill battle to resolve the disagreement. Since neither you nor your attorney knows how long it will take to reach a resolution, it is difficult for the attorney to estimate, in advance, how much the divorce will cost. The disagreement may be resolved in a day, or it may take a year. If it takes a year, it’s only fair that the attorney be paid for a year’s worth of work. If it takes a day, on the other hand, the divorce will be far less costly. In order to deal with this uncertainty, most divorce attorneys will charge on an hourly basis. That way, no matter how long it takes to resolve the disagreement, the price of the legal services will reflect the amount of work performed by the attorney. Some people are uncomfortable with paying by the hour because they feel that it misaligns the incentives of the divorce attorney and the client: the divorce attorney maximizes his revenue by working more hours, while the client saves the most money by minimizing the number of hours worked. While this concern is 100% legitimate, there is really no way to avoid billable hours. As long as there is contention involved in the divorce, there will be uncertainty, and as long as there is uncertainty, the attorney will have to charge by the hour. On the other hand, if there is no disagreement, then there is practically no uncertainty, which opens up the door to alternative forms of billing. This situation is called an uncontested divorce. If you and your former spouse agree on all of the issues, including how to divide all of the marital property, who gets custody, how to arrange visitation rights, etc., then it becomes very easy to execute a divorce. In this case, there is essentially no uncertainty, and any good attorney worth his/her salt will be able to tell, in advance, how much time and effort will be involved. In this case, the attorney will be able to quote you a flat fee for his or her services. This is called an uncontested divorce or a flat fee divorce. Almost every family law attorney will be willing to do your divorce on a flat fee basis, provided that you and your spouse agree on all of the issues. That is to say, it’s not the case that some divorce attorneys are inherently flat fee divorce attorneys and others are hourly divorce attorneys. It really just depends on the circumstances between you and your former spouse. However, as a word of caution, many more people believe that they are in perfect agreement with their former spouse than actually are in agreement. Often times, people agree in principle, but when it comes time to really hammer out the details of a separation agreement, they realize that they don’t see eye to eye. As a result, if you tell a divorce attorney that you want an uncontested divorce, they may be skeptical as to whether or not you’re your situation is truly uncontested. Don’t take this as a sign of mistrust or bad communication. Instead, it’s simply a sign that the attorney is being thorough and doing his job. Go through all of the facts, and the attorney will soon be able to assess your situation, and give you the most accurate quote available. By Elspeth Crawford Getting divorced and looking to save money? For a lot of people, the first thought that comes to mind that you might be able to save a few bucks by hiring one divorce lawyer for both you and your partner. It's not unheard of, but buyer be warned. An attorney is supposed to be your advocate, and sharing him with your ex might compromise the attorney's ability to perform that role. Here's what I mean. Let's say you and your partner have joint ownership of a car. As you're going through the divorce process, you will need to decide who will take full ownership of the car. Even if you both aspire to be as cooperative as possible, this is a zero sum game, and as a result, your interests are adverse to your partner. In this case, who will the attorney side with? If he sides with you, your partner will feel like he/she isn't getting the full benefit of the attorney fees that he's paying. If he sides with your partner, you will feel like you're not getting the full benefit of the attorney fees that you're paying. No matter how you toss the dice, someone is going to feel slighted. And the potential damage of this arrangement is not limited to you and your partner. Your attorney may also pay the price. Attorneys are required, by law, to avoid conflicts of interest. This is a rule that was set in place in order to protect you - the client. But if you, the client, ask your attorney to represent both yourself and your partner, you put your attorney in a very difficult position. If the state bar association finds out about it, your attorney could be punished. He or she may be forced to pay a steep fine, or even worse, lose his or her license to practice law. For all of these reasons, you and your partner should have separate attorneys. Sure, you could save a few dollars in attorney fees by hiring the same person, but if the underlying service doesn't live up to the price tag, is it worth it? More to the point, there are other ways that you can reduce the cost of divorce. For example, you and your partner can have a prenuptial agreement - this way, all of the contingencies will be worked through while tempers are calm. Also, you can practice the age old art of compromise. Finally, you can search for an attorney who is known for very affordable fees. In short, there are many ways to save money on divorce, and most of them don't involve compromising the quality of the services that you're paying for. By Elspeth Crawford Before you swipe a Google image for your next post, you might want to read further. Online Defamation Law Defamation is a false and unprivileged statement of fact that is harmful to someone's reputation and is published "with fault," meaning as a result of negligence or malice. If the defamed person is a public figure, then the statement must be published with “actual malice”. Posting defamatory content online (p.s., this includes more than blogging) bears the same weight as publishing it in a magazine. Defamation law requires merely that the statement be made to someone who is not the defamed subject of the statement. Be mindful of everything you post about a person. Posting “anonymously” does not protect you, and brings me to my next point. Blogging Anonymously If you operate an “anonymous” account, be it a blog or Twitter, you may be surprised to learn it’s not really anonymous. Every move you make online leaves a trail, a very easily accessible trail known as an IP address. If you’re making derogatory comments about someone, all they have to do is look at your IP address and can simply search it (for free) to discover who you are. Then, you could be staring at a cease and desist letter or a lawsuit complaint. Courts are taking a no-nonsense approach to defamatory statements online with the recent tragedies related to cyber-bullying, so: be nice, not naive. Sharing Content Everything you blog is protected by copyright. Your text, your images, your graphics, your videos – everything. All online content is copyrighted the second it is published. That makes you, or the author, the copyright owner. If someone uses your content without permission, you may ask them to take it down. If someone uses your content commercially (i.e. makes money from an image you published), you have a right to sue for compensation. However, every image and text and video that you pull off the Internet is copyrighted. This means, for example, if you use a Google image without permission of the author, you may be infringing on a copyright. Even if you link a source back to the author, it could still be copyright infringement. Removing copyrighted content will not remove legal liability. So: ask before taking and protect your own work. Links To date, courts have found that permalinks - links that lead readers to an internal page on a website - to web pages constitute neither copyright infringement nor trespass. To be clear, these are NOT source links. No court has enforced a site's terms of use that ban permalinking, so you are safe to use them. Comments Bloggers typically retain the discretion to publish comments on their site. When a person comments on a post, in most instances the commenter gives an implied license for the public display of that comment. This license also covers any subsequent copying of the comment. So: don’t write anything as a comment that you don’t want the whole world to see {and remember, commenting anonymously is not actually anonymous}. Images As I said above, all images online are subject to copyright unless they fall into a category called “Fair Use” in The Copyright Act (see 17 USC § 107). You may or may not be aware of the legal issues for which Pinterest has come under fire; this is why. Images online are, typically, not in the public domain, and believe it or not, you don’t have the right to use any of them without permission. Public domain includes works and documents produced by the federal government or a governmental agency, legal cases, state and federal statutes, quotations from existing works, and facts or ideas from existing works. So: before you use an image that you have not taken or created yourself, ask the copyright owner. Advertising Many blogs involve advertising; ads for companies, other blogs or sites, products, and more. Some blogs offer advertisements for the blog itself. Ads must comply with advertising laws set out by the Federal Trade Commission. The Policy Statement issued by the FTC states that you must have a reasonable basis for your objective claims before you initially disseminate them. Warning: the FTC vigorously enforces the requirement that advertisers must substantiate their express and implied claims, so advertise with caution. Giveaways Tons of bloggers use giveaways to reward their readers and increase traffic flow and followers. Most bloggers don’t realize that giveaways can be classified as an illegal lottery. The Federal Communications Commission (FCC) defines a lottery as “any game, contest or promotion that combines the elements of prize, chance and consideration.” In laymen’s terms, if your blog giveaway has a prize which will be won, winner(s) which will be randomly chosen, and a legal contract element known as “consideration” (paying, tweeting, “liking”, or following to enter the giveaway would qualify), then you are successfully running a lottery which is highly regulated at the federal and state level! Not all lotteries are illegal, but lotteries do come with strict rules, guidelines, and penalties. To avoid being heavily fined by the government, ensure that the giveaway guidelines clearly specify: who can enter, the duration of the giveaway, how the winner will be RANDOMLY chosen, consideration required for entry, and the prize. By Elspeth Crawford It’s so easy to Tweet. All you have to do is find something worth sharing, perhaps an interesting article or a thought about the last place you ate lunch or a picture of your new cat, find a way to express the information in less than 140 characters and hit ‘Tweet’. And then it’s out there, swimming among thousands of other Tweets for anyone on the World Wide Web to see. And according to the New York City Criminal Court, it can be used against you in a court of law. The case at issue, People v. Harris, involves a protester named Malcolm Harris who was involved with the Occupy Wall Street Movement last year. In October of 2011, he and several of his 99-percenter brethren were arrested for disorderly conduct as they attempted to cross the Brooklyn Street Bridge in contradiction of a police order. Now, prosecutors want to subpoena three months worth of Harris’ Tweets in the hopes of divining why he attempted to cross that bridge. Both Harris and the legal team at Twitter have tried to stop the subpoena. In striking them down, Judge Matthew A. Sciarrino, Jr. has pushed the law surrounding the legal status of Tweets in some interesting new directions. To start, Judge Sciarrino held in an April 20 ruling that Harris, who had filed a motion to quash the subpoena requesting his Tweets, did not have standing to make such a request, which is to say that he wasn’t legally allowed to ask that the subpoena be stopped. To back this up, Sciarrino quoted extensively from Twitter’s own Terms of Service, which provide that by posting a Tweet the tweeter grants to Twitter “a worldwide, non-exclusive, royalty-free license to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).” Judge Sciarrino read this and other provisions to mean that “…Tweets the defendant posted were not his.” Instead, the Tweets effectively belong to Twitter to do with them as they wish. In this case, Twitter did not wish to hand the Tweets over to the court. In its own motion to quash the subpoena, Twitter argued that Harris’ Tweets were protected by the Fourth Amendment, which secures the right of the people to be free from “unreasonable searches and seizures.” Sciarrino rejected this argument, saying that the Amendment does not cover Tweets due to their incredibly public nature. He analogized Tweeting to a man yelling something out his window above a crowded street, reasoning that if a passerby were later called to testify as to what the man said, they could do so because the man made it public information by screaming it to anyone who happened to be in earshot. Tweets are public statements, and according to Sciarrino there can be no reasonable expectation of privacy in posting one. If the government wants to get their hands on a Tweet for purposes of a trial, they can. And honestly, a much of this isn’t particularly shocking. Twitter is an inescapably public forum. Tweeting something means you want it to at least be read by your followers and, more likely, by anyone else who happens to be interested in the topic. Every Tweet is published for all round the world to see, so to turn around after posting one and claim that no one’s allowed to look at it seems to run counter to common sense. Sciarrino also goes out of his way to distinguish Tweets, which are public, from private messages and e-mail, which are private and deserving of higher levels of protection. Also, the ruling is pretty well versed on the subject of Twitter and includes some good descriptions of what the service is and what it does, which goes against the conventional wisdom that all judges are technophobes who would prefer to write their rulings with ink and quill if it weren't for those meddlesome young people. Even if some of the decisions here get overturned on appeal, it’s frankly nice to have some clarification on issues which up to this point have remained mainly in the realm of speculation. More and more lawyers are claiming to be “social media specialists” but because the law in that area is so unformed it’s often not clear just what that means. Rulings like this at least provide some clarity. Do you think Tweets should be protected by the Fourth Amendment? Can people expect to maintain control over information they post to the public at large? Let us know in the comments. By Elspeth Crawford Spiders, bots and crawlers: Oh MY! Most everyone who has a website or online social media profile is victim of web scraping, whether they know it or not. What is web scraping? Web scraping is a technique used by web crawlers, or bots, to extract information from websites. Collected information is transformed into structured data that can be stored and analyzed, typically in a database or spreadsheet. This technology drives a substantial amount of business, and many companies’ viability relies on it. However, controversy can arise when commercial companies use scraping software to collect substantial amounts of data from websites for their own profit. When does web scraping violate website’s terms of use? Web scraping is used for many reasons, including price comparisons and targeted advertising. Often websites prohibit scraping through their terms of use. There are two types of terms of use online: clickwrap and browsewrap. Clickwrap terms require the user to click in agreement with the terms of use. Browsewrap terms are simply listed on the website, without requiring any action. Consequently, if the user never saw the terms of use, there was no contract formed because there was no ‘meeting of the minds’. What are legal risks for businesses that use web scraping? Companies using web scraping can be subject to legal risks, but under current law, it is unclear what crawlers can and cannot do. A large risk at issue with web crawlers is the unanswered question behind breaking terms and conditions of websites when scraping information. The law is unclear as to whether that activity amounts to trespass to chattels or breach of contract. Some website owners’ claims have been viable in these situations, so there is a risk. When the scraper uses the scraped information commercially, they will likely be subject to more liability. Additionally, if the scraper collects copyrighted information, its operators could be liable for infringement. Can web scraping give rise to a trespass to chattels action? Trespass to chattels is a tort claim arising when a party has intentionally interfered with another person's lawful possession of movable personal property. Because, traditionally, trespass to chattels has included dispossession of the property by taking it, destroying it, or barring the owner's access to it, it has been argued in the digital age that websites are considered as chattels. In eBay v. Bidder’s Edge, a notable claim involving scraping as “illegal data mining," a California court held that the thousands of queries a day, electronic signals retrieving information from eBay’s system, by Bidder’s Edge were sufficiently tangible to constitute a trespass action. However, eBay had not actually suffered any injury or harm from the trespass. While the court acknowledged this, they stated that eBay was not required to wait until they suffered harm before they sought an injunction. The Supreme Court of California interpreted the eBay decision further in Intel v. Hamidi, stating that showing a risk of future harm substantiated claims of Internet trespass to chattels. Accordingly, to determine if there is a substantial likelihood of future harm, a court should look to the volume or frequency of interferences. Subsequent courts in other jurisdictions have applied this analysis, requiring that the plaintiff demonstrate damage, or substantial risk of future damage, to their computer system. Thus, the degree of protection for online content is not settled, and will depend on the type of access made by the scraper, the amount of information accessed and copied, the degree to which the access adversely affects the site owner’s system, and the types and manner of prohibitions on such activity. Can web scraping give rise to a breach of contract action? In regard to breach of contract claims for violating a site’s terms of service, the United States Court of Appeals for the Second Circuit held in Specht v. Netscape Communications Corp. that terms of use are not enforceable if there is not reasonable notice of the existence of the terms and unambiguous consent to that license. Merely clicking on a button does not show assent to license terms if those terms were not obvious and if it was not explicit to the consumer that clicking meant agreeing to the license. California courts went on to determine in Ticketmaster Corp v. Tickets.com, Inc. that a hyperlink to the terms of use placed in the footer of a web page does not constitute prominent notice of those terms. However, if the terms are prominent, then a user will be held to the terms on inquiry notice. Clickwrap agreements seem to carry more weight, as a Texas state court found grounds of trespass to chattels and breach of contract in American Airlines, Inc. v. Farechase, Inc. The court enforced an 'if you use this site, you agree' terms of service statement on American Airlines websites, and enjoined software company Farechase from accessing and scraping data to redistribute and sell it to travel agents and online travel systems. Can web scraping give rise to a copyright infringement action? Scraping, generally, raises some copyright law issues. Visiting a copyrighted website temporarily for the purpose of extracting factual information and reproducing it does not violate website owner’s copyright. Any factual information that is extracted is protected under fair use in The Copyright Act. However, if the extracted information is a copyrighted work, the scraper may be subject to copyright liability. The Digital Millennium Copyright Act of 1998 was enacted to control and regulate copyright issues in a technological world. Section 1201(a)(1) of the DMCA states “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.” This provision speaks to web scraping, particularly when bots avoid measures that website owners make to protect their content. What types of damages have been awarded in previous web scraping cases? Typically, injunctions are the only remedies sought. A plaintiff in a case against a scraper must show substantial harm in order to receive damages. Courts have generally not awarded damages, only injunctions, in cases involving web scraping. It seems that the design and nature of the crawled web sites determines the legal liability, versus the actual activity of the crawler itself. If your business operates scraping technology, be wary of what you crawl! If you operate a website, check out these tips to create an effective user policy. By Elspeth Crawford No one likes it when people spread lies behind their back. If someone has done this to you, you may be entitled to sue that person under the law of defamation. Defamation occurs when someone else says or tells another person a false statement about you that damages your reputation or good name. Defamation comes in a couple of different varieties. Defamation through writing is called “libel.” Spoken defamation is called "slander." Libel Libel is written defamation. It can come in many forms: through a blurb in a newspaper article, a memo circulated around an office, an e-mail, and more. In order to recover against someone who has committed a libel against you, you must show that the written statement was:
Also know that libel is not limited to written statements. Libel also encompasses offensive pictures, caricatures, statutes, and effigies that meet the above requirements. Keep that in mind the next time you make an offensive wood carving. Slander Unlike libel, slander is spoken rather than written. If someone says something offensive and untrue about you to another person and it damages your reputation, you may be able to sue for slander. Slander has the same basic requirements as libel, that is the statement must be defamatory, must be published to at least one other person, and must be said with some degree of fault. In fact, some states don’t have separate laws for libel and slander but treat both the same. Still, there are a few wrinkles that make slander unique.
Defenses If you’re sued for defamation, know that there are some situations in which you are not liable. These situations include:
If you are ever sued for defamation, the best course of action is to consult an attorney, as there are subtleties to using any of these defenses which a lawyer will more readily understand. Damages If you've been defamed, you may be entitled to receive a monetary award to compensate for your damaged reputation or lost business. The process of proving the amount of the award can be difficult and could require extensive negotiations or a trial. If the defamation was particularly reprehensible, you might also collect "punitive damages," which exist to punish people beyond the amount it would take to merely compensate a defamed person for their losses. |
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