We have all seen the signs in yards and at busy intersections reminding us that there are motorcycles on our highways. As spring turns to summer, we see more and more motorcycles. Despite the effort of many motorcycle organizations such as ABATE, motorcycle accidents are on the rise and motorcycle fatalities continue to increase. In 2008 there were 5,290 motorcyclist fatalities which accounted for 14% of the total crash fatalities in the United States. This figure represents the 11th consecutive year that there has been an increase in motorcycle crash fatalities.
Many believe that the increase in motorcycle crashes and motorcycle fatalities is directly related to the increase in the number of motorcycles on our highways, while others attribute it to larger, faster motorcycles and the reluctance of many motorcycle operators and passengers to wear helmets. Nearly 50% of the motorcyclists killed were over the age of 40, nearly a third were under the age of 30 and approximately 25% involved riders with a blood alcohol over .8 percent.
While there are numerous reasons and causes for motorcycle crashes, the lack of awareness of automobile, pickup truck and SUV drivers has played a significant role in motorcycle accidents and motorcycle fatalities. As a biker, I know firsthand that some drivers just don’t see the motorcycles on the highway. I have discussed this dilemma with many bikers and all have relayed harrowing experiences when a car pulls out in front of them or nearly runs over them as they proceed slowly on a country road. I have personally represented numerous motorcyclists who were injured as a result of motor vehicle/motorcycle crashes, cases where the motorcyclist was stopped at a stop sign and struck by a motor vehicle turning into the same intersection or the motorcyclist was proceeding along the highway when a car pulls from a stop sign directly into his path. In nearly all of these cases, the crashes relate to the lack of awareness of the motor vehicle driver. In other words, the motor vehicle driver just did not see the motorcycle.
What can be done about the lack of awareness? Obviously, we must continually and repeatedly remind drivers, experienced and inexperienced, that there are motorcycles on our highways and they are truly everywhere. Perhaps drivers should be tested when obtaining their operators license or when seeking a renewal concerning motorcycle awareness. A simple operators simulation involving other cars and motorcycles on the highway could be used as a test and a reminder to be observant. In addition, motorcyclists should be encouraged to wear bright colored or reflective clothing. Finally, all of us should be reminded that motorcycles are truly everywhere and when determining whether there is a clear right to proceed, our minds must be focused not only on whether there are oncoming cars, pickup trucks or SUV’s, but also motorcycles.
Submitted By:
James T. Davis, Esquire
jdavis@davisanddavislaw.com
Wednesday, August 12, 2009
Tuesday, July 28, 2009
The Differences between Criminal and Civil Law
After O.J. Simpson was acquitted in his double murder trial, most American’s thought that the case was over. They believed that in accordance with the Fifth Amendment of the United States Constitution that "no person shall be subject for the same offense to be twice put in jeopardy of life or limb..." Why then was Simpson able to be sued and ordered to pay damages? The reason lies in the kind of actions brought against Simpson. First he was tried criminally and even though he was acquitted or found not guilty, he was still liable to be sued under civil law procedures for damages. In his case, two (2) trials reached very different conclusions. How was this possible? One of the reasons is that there is a far greater burden of proof in criminal cases than exist in civil cases.
Several questions must be asked to point out the differences between civil cases and criminal cases. Initially, we have to know who are the parties involved. In civil cases, the parties are private individuals or individuals and corporations. In criminal cases, the government is involved as a prosecutor, either the federal, state or local government. For example, in Pennsylvania, a criminal case is between the Commonwealth of Pennsylvania as the Plaintiff and the individual who has been charged with a crime, as the Defendant.
The next question that must be asked to establish a difference and distinction between civil and criminal cases is what is the nature of the case or what must the Court decide? In civil cases, Courts must determine whether one party has caused harm to the other party, in other words, the case deals with rights and duties between individuals or corporations. In criminal cases, the issue to be decided by the Court is whether one party has violated a law or a statute that prohibits some type of activity. That is, the case deals with offenses against society as a whole even if the offense is against one single person.
The next question to be decided is the penalty or remedy being sought in the case. In civil cases, individuals, the Plaintiffs, sue for damages either monetary or otherwise, such as specifically performing a contract, to compensate for their perceived loss. In criminal cases, the government acts as the Plaintiff and the federal, state or local government seeks to punish the Defendant or deter the Defendant from further action or to rehabilitate the Defendant so that peace in the community is preserved.
Finally, to point out the distinction between civil and criminal cases, one must ask what must be established in order to win? Or in other words, what is the burden of proof? In a civil case, the Plaintiff must establish their case by a preponderance of the evidence to support the claim. An example of the preponderance of the evidence statute is the slight tipping of scales one way or the other. In percentages, anything greater than fifty (50) percent, establishes the preponderance of the evidence. In a criminal case, the burden of proof on the government is much, much, much greater. In order for a person who has been charged with the crime and is presumed to be innocent of that crime by our laws and customs, the government, in order to prove guilt, must establish that the person is guilty beyond a reasonable doubt. Considering the example of the scales, the government must weigh those scales far greater than a mere tipping in order to establish guilt beyond a reasonable doubt. Under Pennsylvania Law, a reasonable doubt is a kind of doubt that would cause a reasonable person to hesitate, or pause before acting in an important affair of their own lives. A reasonable doubt must be an honest doubt and if a reasonable doubt exists in a case or in any part of the case, it must cause the Defendant to be acquitted or found not guilty of the crime.
The natural question then becomes: "why do criminal cases require a higher burden of proof than civil cases?" A fundamental answer is that the judicial system requires a higher burden of proof in a criminal matter because the remedy for violations of criminal laws often requires the taking away of the individual’s fundamental rights including the rights of life, liberty or property. If you are convicted of a crime especially a serious crime, there is a great chance you will be incarcerated and placed in jail or prison. Before the government can take away those rights, it is necessary that they prove the individual’s guilt by establishing solid proof of that guilt which is proof of guilt beyond a reasonable doubt. A civil case obviously requires less of a burden because the remedy is money or other damages that do not affect life or liberty but only property.
One of Pennsylvania’s young heroes, two time Super Bowl winning quarterback, Ben Roethlisberger of the Pittsburgh Steelers, has been accused of sexual assault. Even though this action took place nearly a year ago, he has never been charged with a crime and there has not been any criminal prosecution or criminal investigation and it appears that none will ever take place. However, he has been sued civilly and the burden of proof on the accuser is proving liability, for the purpose of seeking monetary damages, by a mere preponderance of the evidence.
Submitted by:
Samuel J. Davis, Esquire
sdavis@davisanddavislaw.com
Several questions must be asked to point out the differences between civil cases and criminal cases. Initially, we have to know who are the parties involved. In civil cases, the parties are private individuals or individuals and corporations. In criminal cases, the government is involved as a prosecutor, either the federal, state or local government. For example, in Pennsylvania, a criminal case is between the Commonwealth of Pennsylvania as the Plaintiff and the individual who has been charged with a crime, as the Defendant.
The next question that must be asked to establish a difference and distinction between civil and criminal cases is what is the nature of the case or what must the Court decide? In civil cases, Courts must determine whether one party has caused harm to the other party, in other words, the case deals with rights and duties between individuals or corporations. In criminal cases, the issue to be decided by the Court is whether one party has violated a law or a statute that prohibits some type of activity. That is, the case deals with offenses against society as a whole even if the offense is against one single person.
The next question to be decided is the penalty or remedy being sought in the case. In civil cases, individuals, the Plaintiffs, sue for damages either monetary or otherwise, such as specifically performing a contract, to compensate for their perceived loss. In criminal cases, the government acts as the Plaintiff and the federal, state or local government seeks to punish the Defendant or deter the Defendant from further action or to rehabilitate the Defendant so that peace in the community is preserved.
Finally, to point out the distinction between civil and criminal cases, one must ask what must be established in order to win? Or in other words, what is the burden of proof? In a civil case, the Plaintiff must establish their case by a preponderance of the evidence to support the claim. An example of the preponderance of the evidence statute is the slight tipping of scales one way or the other. In percentages, anything greater than fifty (50) percent, establishes the preponderance of the evidence. In a criminal case, the burden of proof on the government is much, much, much greater. In order for a person who has been charged with the crime and is presumed to be innocent of that crime by our laws and customs, the government, in order to prove guilt, must establish that the person is guilty beyond a reasonable doubt. Considering the example of the scales, the government must weigh those scales far greater than a mere tipping in order to establish guilt beyond a reasonable doubt. Under Pennsylvania Law, a reasonable doubt is a kind of doubt that would cause a reasonable person to hesitate, or pause before acting in an important affair of their own lives. A reasonable doubt must be an honest doubt and if a reasonable doubt exists in a case or in any part of the case, it must cause the Defendant to be acquitted or found not guilty of the crime.
The natural question then becomes: "why do criminal cases require a higher burden of proof than civil cases?" A fundamental answer is that the judicial system requires a higher burden of proof in a criminal matter because the remedy for violations of criminal laws often requires the taking away of the individual’s fundamental rights including the rights of life, liberty or property. If you are convicted of a crime especially a serious crime, there is a great chance you will be incarcerated and placed in jail or prison. Before the government can take away those rights, it is necessary that they prove the individual’s guilt by establishing solid proof of that guilt which is proof of guilt beyond a reasonable doubt. A civil case obviously requires less of a burden because the remedy is money or other damages that do not affect life or liberty but only property.
One of Pennsylvania’s young heroes, two time Super Bowl winning quarterback, Ben Roethlisberger of the Pittsburgh Steelers, has been accused of sexual assault. Even though this action took place nearly a year ago, he has never been charged with a crime and there has not been any criminal prosecution or criminal investigation and it appears that none will ever take place. However, he has been sued civilly and the burden of proof on the accuser is proving liability, for the purpose of seeking monetary damages, by a mere preponderance of the evidence.
Submitted by:
Samuel J. Davis, Esquire
sdavis@davisanddavislaw.com
Friday, February 6, 2009
Right-to-Know Policy
On January 1, 2009, Pennsylvania’s Right -to-Know Law, commonly referred to as the Open Records Law, took effect. The original legislation which completely revamped Pennsylvania’s existing Right-to-Know Law was signed by Governor Rendell on February 14, 2008. The Law itself presumes that any record in the possession of a Commonwealth agency or local agency is public and the burden of proving that the record is not public is placed on the agency. The Law defines agency as any local, intergovernmental, regional or municipal agency and authority, counsel, board, commission or similar governmental entity. An agency would also include a political subdivision, intermediate unit, public, charter and/or cyber or trade school. The Right-to-Know Law applies to all Commonwealth agencies, however judicial agencies must only comply as to their financial records. The Law itself establishes an office of open record which bears the responsibility of developing regulations relating to the implementation of the Law, a uniform request form, determination of appeals from any denial by a governmental agency to a records request, establishing and approving fees as well as he enforcement of the Law and the issuance of advisory opinions to agencies concerning requests for documents.
As the Law relates to school districts, townships and boroughs as well as other local agencies, the Law provides in summary, that each develop policies and procedures for records requests, appoint an Open Records officer, provide contact information for their Open Records officer, develop a form for records request and established fees to be charged.
A record, as referred to in the legislation, is information which would include documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, electrically stored or maintained information, data processed or image processed documents relating to the activities of the agency that are received, created or retained relating to the business or activity of the agency. Certain records are exempt such as a records that relate to the loss of funds, that might be harmful to an individual, that might impact public safety or might impact building security and computer security. There are additional exemptions set forth in the statute which can be reviewed on the Office of Open Records website, http://openrecords.state.pa.us.
The Right-to-Know or Open Records Law is a complete codification of previous legislation which had been designed to develop transparency in government but to many failed to achieve that goal. The current legislation will certainly be tested but should be applauded as a significant step in developing true transparency in government, for in a democracy a government of the people and the government itself as well as it’s records must be open to the people.
Submitted by:
James T. Davis, Esquire
jdavis@davisanddavislaw.com
As the Law relates to school districts, townships and boroughs as well as other local agencies, the Law provides in summary, that each develop policies and procedures for records requests, appoint an Open Records officer, provide contact information for their Open Records officer, develop a form for records request and established fees to be charged.
A record, as referred to in the legislation, is information which would include documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, electrically stored or maintained information, data processed or image processed documents relating to the activities of the agency that are received, created or retained relating to the business or activity of the agency. Certain records are exempt such as a records that relate to the loss of funds, that might be harmful to an individual, that might impact public safety or might impact building security and computer security. There are additional exemptions set forth in the statute which can be reviewed on the Office of Open Records website, http://openrecords.state.pa.us.
The Right-to-Know or Open Records Law is a complete codification of previous legislation which had been designed to develop transparency in government but to many failed to achieve that goal. The current legislation will certainly be tested but should be applauded as a significant step in developing true transparency in government, for in a democracy a government of the people and the government itself as well as it’s records must be open to the people.
Submitted by:
James T. Davis, Esquire
jdavis@davisanddavislaw.com
“Anti-Nepotism Hiring Policies”
Much has been written about school boards and the hiring of school board directors’ relatives. Recently a local news editorial championed what it referred to as "Anti-Nepotism Hiring Policies". That same editorial commended a school solicitor for authoring a Letter to the Editor in support of such a policy.
The attorneys at Davis and Davis have, for more than three decades, represented school districts, townships, and other municipal bodies. We recognize that a solicitor, be it a school or municipal solicitor, does not serve in a policy making position. Policy determinations must be made by elected officials and not the attorneys hired to assist those officials in navigating the various and sundry laws that may apply to the actions contemplated by such bodies.
Whether you believe that anti-nepotism hiring policies are necessary or not, one must be reminded that the Pennsylvania State Legislature has addressed the issue of the employment of relatives by school directors as well as borough and township officials. The Pennsylvania School Code provides that no school director shall vote for a teacher candidate who is related to that member of the board. The list of relatives extends from a parent to a first cousin.
This provision of the School Code has been interpreted to mean that not only can a school director not vote for his or her relative, but cannot participate in the discussion and cannot solicit support from the superintendent or other board members. The entire discussion of Anti-Nepotism Hiring Policies fails to recognize the action taken by the Pennsylvania Legislature and the codification of that action in the School Code. Needless to say, similar legislation exists which is applicable to township supervisors, borough counsel members, authority members and similar municipal servants.
We at Davis and Davis remain cognizant of our role as solicitors and recognize changes in policy in a democracy must always be made by elected officials and not by the attorneys which they have employed.
Submitted by:
James T. Davis, Esquire
jdavis@davisanddavislaw.com
The attorneys at Davis and Davis have, for more than three decades, represented school districts, townships, and other municipal bodies. We recognize that a solicitor, be it a school or municipal solicitor, does not serve in a policy making position. Policy determinations must be made by elected officials and not the attorneys hired to assist those officials in navigating the various and sundry laws that may apply to the actions contemplated by such bodies.
Whether you believe that anti-nepotism hiring policies are necessary or not, one must be reminded that the Pennsylvania State Legislature has addressed the issue of the employment of relatives by school directors as well as borough and township officials. The Pennsylvania School Code provides that no school director shall vote for a teacher candidate who is related to that member of the board. The list of relatives extends from a parent to a first cousin.
This provision of the School Code has been interpreted to mean that not only can a school director not vote for his or her relative, but cannot participate in the discussion and cannot solicit support from the superintendent or other board members. The entire discussion of Anti-Nepotism Hiring Policies fails to recognize the action taken by the Pennsylvania Legislature and the codification of that action in the School Code. Needless to say, similar legislation exists which is applicable to township supervisors, borough counsel members, authority members and similar municipal servants.
We at Davis and Davis remain cognizant of our role as solicitors and recognize changes in policy in a democracy must always be made by elected officials and not by the attorneys which they have employed.
Submitted by:
James T. Davis, Esquire
jdavis@davisanddavislaw.com
Tuesday, January 6, 2009
Davis & Davis Blog will be updated soon!
In the coming days, our Firm's Blog will be updated. We will be posting several articles in 2009 and we would appreciate any feedback. Please let us know if you would like a specific topic addressed on the Blog. Have a happy and healthy 2009!
Tuesday, April 1, 2008
Conflict of Interest
We often hear the phrase "conflict of interest" . What does that phrase mean and when do conflicts of interest arise? Conflicts of interest arise when decision makers, be they school directors, councilmen, university or college trustees, or others in similar positions have personal, family, business or others interest that could effect their independent judgement and their faithful performance of duties to the institution they serve. Of course, most potential conflicts do not have such effect, they nevertheless must be addressed because even a perceived conflict of interest can be harmful to the institution. Usually, accomplished, active individuals like those who serve on such institutions inevitably are in engaged in activities and affairs of other institutions and organizations.
In most situations, conflicts of interest involve direct or indirect business relationships between the institution and the individual, they also arise in a variety of other circumstances. To illustrate, conflicts of interest occur when an individual or family member:
In most situations, conflicts of interest involve direct or indirect business relationships between the institution and the individual, they also arise in a variety of other circumstances. To illustrate, conflicts of interest occur when an individual or family member:
- conduct business with the institution,
- use institutional resources to promote his or her individual or family’s financial or other interest,
- uses confidential information about the institution to promote his or her individual or family interest,
- has a relationship with a competing institution,
gains financially from an institutional transaction, - assists an outside entity to benefit financially or otherwise from the institution in ways not available to that entity’s competitors,
- lends or borrows money or property from an entity or person who conducts business with the institution,
- receives gifts from an individual or entity who conducts business with the institution,
- accepts gifts or perquisites (perks) from the institution not readily available to other members of the institutional community,
- participates in or permits the approval of policies not in the institutions best interest,
- participates in or permits the rejection of policies that are in the institutions best interest,
- and promotes or participates in social or political agendas or campaigns that could have a detrimental effect on the institution.
Conflicts of interest by decision makers or even the appearance of such conflicts of interest, must be avoided. The only way a decision maker can avoid a conflict of interest is to be familiar with what constitutes them and to promptly identify a potential conflict. Of course, the decision maker should promptly disclose personal, family, business or other circumstances that could raise conflict questions. If a conflict is in fact identified, the decision maker affected, should of course, refrain from any action by the institution that involves the conflict and in no event, should the decision maker have a right to vote on the matter or even to be present when the issue is discussed by other institutional decision makers.
Submitted by:
Samuel J. Davis, Esquire
sdavis@davisanddavislaw.com
Wednesday, February 27, 2008
What is a Tort?: House Bill No. 34
A careless driver has caused an automobile collision and the injured victim does not know where to turn. He reads his automobile insurance policy only to add to his confusion. He calls his attorney and the first question he asks is "What is a tort?" This scenario plays out daily throughout Pennsylvania. People are injured through no fault of their own and are forced to "figure out" what type of insurance they had purchased. Few, if any, know what the word "tort" truly means. Nearly every day that very question is asked of me. " I have been injured in an accident through no fault of my own, what can I do? What is a tort?"
Blacks Law Dictionary defines a tort as a civil wrong for which a remedy may be obtained in the form of damages.
In 1990, the Pennsylvania State Legislature, in its collective wisdom, amended the Motor Vehicle Financial Responsibility Law to provide two types of "tort" options. One option would be the selection of full tort while the other option would be the selection of limited tort. Although the options sound good, when purchasing automobile insurance few people have any idea of what the options mean. Only after being injured in an automobile accident and they have conferred with an attorney do they truly understand their rights as controlled by the insurance policy they may have purchased years before. Full tort means one’s full right to seek compensation for injuries that have been sustained, or in other words, a full right to sue while limited tort, the other selection, limits one’s right to recover for injuries, or in other words, a limited right to sue.
Over the past seventeen years, Pennsylvanians have been confused and have continually misunderstood the automobile insurance which they have purchased. The Pennsylvania Legislature has offered no guidance or explanation. At least three House Bills commonly referred to as Plain Language Bills have languished in Committee for several years and hopefully at least one of them may soon be voted upon by the full membership of the House of Representatives. The most likely scenario is that House Bill No. 34 will be the first to be acted upon unless the Legislature continues to drag its feet. This legislation, commonly known as a Plain Language Bill, would change the language of automobile policies from the hard to understand terminology "full tort and limited tort" to the much more consumer friendly terminology of "full right to sue and limited right to sue," obviously making insurance policies easier to understand and allowing Pennsylvanians to best choose the type of insurance right for them and their families. Consumer confusion helps no one and I can think of no reason why every Pennsylvania representative and senator would not support the Plain Language legislation. Please call your legislator and senator and ask them to support House Bill No. 34. Don’t wait until you have been in an accident to find out about your automobile insurance. Check your policy and make sure you have selected the type of insurance that best protects you and your loved ones.
Submitted by:
James T. Davis, Esquire
jdavis@davisanddavislaw.com
Blacks Law Dictionary defines a tort as a civil wrong for which a remedy may be obtained in the form of damages.
In 1990, the Pennsylvania State Legislature, in its collective wisdom, amended the Motor Vehicle Financial Responsibility Law to provide two types of "tort" options. One option would be the selection of full tort while the other option would be the selection of limited tort. Although the options sound good, when purchasing automobile insurance few people have any idea of what the options mean. Only after being injured in an automobile accident and they have conferred with an attorney do they truly understand their rights as controlled by the insurance policy they may have purchased years before. Full tort means one’s full right to seek compensation for injuries that have been sustained, or in other words, a full right to sue while limited tort, the other selection, limits one’s right to recover for injuries, or in other words, a limited right to sue.
Over the past seventeen years, Pennsylvanians have been confused and have continually misunderstood the automobile insurance which they have purchased. The Pennsylvania Legislature has offered no guidance or explanation. At least three House Bills commonly referred to as Plain Language Bills have languished in Committee for several years and hopefully at least one of them may soon be voted upon by the full membership of the House of Representatives. The most likely scenario is that House Bill No. 34 will be the first to be acted upon unless the Legislature continues to drag its feet. This legislation, commonly known as a Plain Language Bill, would change the language of automobile policies from the hard to understand terminology "full tort and limited tort" to the much more consumer friendly terminology of "full right to sue and limited right to sue," obviously making insurance policies easier to understand and allowing Pennsylvanians to best choose the type of insurance right for them and their families. Consumer confusion helps no one and I can think of no reason why every Pennsylvania representative and senator would not support the Plain Language legislation. Please call your legislator and senator and ask them to support House Bill No. 34. Don’t wait until you have been in an accident to find out about your automobile insurance. Check your policy and make sure you have selected the type of insurance that best protects you and your loved ones.
Submitted by:
James T. Davis, Esquire
jdavis@davisanddavislaw.com
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