Beware Of Special Rules When Suing A Municipality

Accident victims should retain counsel as soon as possible after injuring themselves on city-owned property due to special rules that apply in those cases, says Windsor personal injury lawyer Gino Paciocco.

Paciocco, a founding partner of Paciocco & Mellow, tells that while plaintiffs have two years to file a civil claim, provincial law requires an extra step for cases involving a municipality.

Under s. 44 (10) of the Municipal Act, actions against a city for negligence are barred unless “within 10 days after the occurrence of the injury, written notice of the claim and of the injury complained of, including the date, time and location of the occurrence, has been served upon or sent by registered mail” to the clerk of the municipality.

In cases where responsibility for the road or bridge in question is shared, the clerk for each jurisdictions must receive notice, the Act says.

“If you miss the 10-day notice period, in some circumstances it can defeat your claim altogether. There are some exceptions to that general rule which is why it is important to see a lawyer as soon as you are injured to protect your rights,” Paciocco says.

“Verbal notice is not sufficient to comply — it must be in writing,” he adds. “We can ensure that rights are protected by sending a notice letter. And if you missed the 10-day period, we can advise if you meet any exceptions to maintain a valid claim in any event.”

Paciocco says municipalities can find themselves liable when property that belongs to them is left in a hazardous condition, or not maintained for an extended period of time.

“In our experience, slip and fall incidents on municipal sidewalks are the most common claims,” he says. “We also have claims for falls and motor vehicle accidents due to icy conditions of roadways, although those are much less frequent.’

As recently as this summer, a family discovered the hard way how strict the notice period can be after Ontario’s top court dismissed their claim against a northern Ontario municipality.

The roots of the case lie in a 2007 accident that left their 17-day-old son brain damaged. A claim was launched in 2014 against the driver and owner of the other car in the crash, but the city was not added as a defendant until almost a year later, two days after the child’s grandmother swore an affidavit to become his official litigation guardian.

A motion judge dismissed the city’s attempt to have the claim struck, concluding that the 10-day notice period did not start to run until after the grandmother took on her duties. In any case, the judge ruled that the plaintiff being a child was a reasonable excuse for missing the deadline and that it caused the municipality no prejudice.

However, the Court of Appeal disagreed, finding that the child’s mother was effectively acting as his litigation guardian when she filed the original suit on his behalf.

“She had no conflict of interest in relation to suing the City, and she had a good reason to try to limit her own potential liability by suing the City,” the unanimous three-judge panel wrote.

“The only explanation in the record for not doing so is [the mother’s] evidence that, ‘this never came up.’”

Since this was not a reasonable excuse, the appeal court concluded the case against the municipality should be dismissed.


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Textalyzer Would Be A Privacy Invasion for Drivers

Privacy concerns will hamper the development of a Canadian “textalyzer” that shows police if a driver’s cellphone was recently in use, says Windsor personal injury lawyer Gino Paciocco.

NPR reports that police in several U.S. states, including New York, want to put the tool into action in an effort to crack down on the increasingly prevalent problem of motorists who text while driving.

Modelled on the breathalyzer for alcohol testing, the machine works by plugging into a phone, and extracting data to put a finger on exactly when and how it was being used at the time the owner was driving.

However, Paciocco, a founding partner of Paciocco & Mellow, tells that the idea strikes the wrong balance between public safety and personal privacy rights.

“If you allow police to go ahead and conduct these tests whenever they want, it’s going to be a huge invasion of privacy that I don’t think people will put up with,” he says. “With the advance of technology, there is so much information your phone can collect. You could tell if someone’s speeding, where they’ve been. Some might even know your blood pressure and how much sleep you had the night before.”

Depending on how well the machine could restrict officers’ access to data on the phone, it could also raise issues for doctors and lawyers who use their devices for work purposes, considering their duties of confidentiality to patients and clients, Paciocco says.

According to NPR, police officers attach a cord to connect the textalyzer to the phone. Within two minutes, it can bring up a summary of the all the apps that were open and in use in the recent past, including screen taps and swipes.

Paciocco says the textalyzer reminds him of photo radar, another measure hailed by some as a solution to a road safety problem.

“It may have been good to reduce speeding, but there was a public outcry about privacy that caused it to be done away with,” he says.

If police have a reason to suspect that a particular driver’s texting caused an accident, then they have other means to get the same information that an on-the-spot textalyzer would provide, Paciocco says.

“They can go and get a search warrant through the courts to collect that evidence from the phone company,” he says. “I don’t see the urgency that would justify giving police officers the absolute right to go into your device with complete discretion.”

While he acknowledges that texting and driving is a practice that appears to be on the rise, Paciocco says there are more effective ways to challenge that problem than a textalyzer.

“You could mandate some sort of lock on the phone that disables it while the car is in motion. If drivers are unable to text with their cellphones, then that would prevent accidents and make everyone much safer,” he says. “But even that would have its own issues, and you would need a way to distinguish between drivers and passengers.”


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FLA Claims an Alternative to Minimized Accident Benefits

With the recent reduction in motor vehicle accident benefits, many people are depending heavily on the Family Law Act (FLA) for compensation, Windsor personal injury lawyer Gino Paciocco tells Law Times.

As the article notes, in Part V of the FLA, entitled “Dependant’s claim for damages,” s. 61(1) gives a spouse, including common law spouses, children, grandchildren, parents, grandparents, brothers and sisters of a person injured or killed by the fault or neglect of another the entitlement to recover their pecuniary loss resulting from the injury or death.

“FLA claims are a way to get around accident benefits now that they are minimized, and optional benefits are not pursued,” says Paciocco, partner with Paciocco & Mellow.

“Just about everyone I see has no optional benefits because they are not told about them by brokers, or they don’t want to pay more,” he adds.

Law Times explains there are two types of claims that can be advanced under the FLA, as outlined in s. 61(2), including pecuniary claims, which are actual expenses reasonably incurred for the benefit of the person injured or killed, such as funeral expenses and a reasonable allowance for the loss of income or the value of nursing or housekeeping services.

There are also non-pecuniary expenses  — compensation for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person.

When you present a non-pecuniary claim, says Paciocco, it’s “more of an art than a science. You are not able to prove actual expenses.”

To deter individuals from going forward with minor non-pecuniary claims, the government has also introduced a deductible, says the article.

Paciocco tells Law Times it makes sense the deductible wouldn’t apply to pecuniary losses, where you can calculate the loss of income.

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Active Supervision a Must at Summer Pool Parties

Pool parties are a fun summer activity, but those hosting need to keep a vigilant eye out and take precautions to ensure everyone is safe, personal injury lawyer Gino Paciocco tells

“We’ve had cases with drowning fatalities and have seen that if you’re going to have a party, you take on the responsibility for those who attend,” says Paciocco, founding partner of the Windsor-based Paciocco & Mellow. “Really what it comes down to is active supervision.”

Situations sometimes occur in the water where even the best swimmer may get into trouble, including cramps, hitting your head on a rock or a diving board or a medical emergency, says Paciocco.

He points to Olympic swimming competitions, which are always staffed with lifeguards, no matter the experience of the competitors.

“For Pete’s sake, you have swimmers like Michael Phelps, who has 28 Olympic medals, and he has a lifeguard watching over the pool,” he says.

Officials are examining the circumstances earlier this month when a 15-year-old boy drowned while on a school trip to Algonquin Park. Questions are being asked about the amount and the kind of supervision that was available during the trip.

Paciocco refers to his case where he represented the family of a child who drowned while on an elementary school graduation excursion. The get-together was held at a residential home and teenagers escorted the group of children to a nearby beach.

“We were successful in that case because there wasn’t active supervision and basically when you’re throwing a party, you’re stepping into the shoes of a parent,” he says.

Paciocco says anyone hosting a water-based event needs to remove themselves from the activity and keep an eye on those in the water to ensure they remain safe. That means they ought not to mix with the other partygoers, and refrain from typical hosting duties.

The best approach, he says, is to hire a lifeguard to ensure someone is watching the water at all times.

For those with outdoor pools, fencing and locked gates are crucial. Paciocco suggests putting alarms on the doors of the house, as well, particularly when there are young children. That way parents are alerted if a child goes into the pool area.

Other prudent precautions include ensuring there is a reasonable level of swimming competence and encouraging the use of life jackets.

“The most important thing is active supervision, which is not just sitting by the pool and conversing with guests while glancing at the water from time to time,” he says. “Sometimes kids, with peer pressure, or whatever, make the wrong decisions.”

That, he says, is an extension of the overall responsibility homeowners have when they host parties. They’re obligated to ensure the property is safe and there are no hazards.

“People have to check that their furniture and property are in a good state of repair and that guests are not left unattended, especially the kids,” says Paciocco.

For those who plan to serve alcoholic beverages, he suggests having a Smart-Serve trained bartender on hand to monitor the situation and ensure guests are not over-served.

“The moment you decide to host a gathering, you’re taking on a tremendous amount of liability. So you have to ensure that people are being monitored and reasonable in their consumption of alcohol,” he says.

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Finding a Trusted Personal Injury Lawyer in Sarnia

The time right after you’ve been injured in an accident or slip and fall often can be a stressful and confusing time. First off, you must be sure that you look after your health. However, when you’re ready, you may start to think about pursuing a personal injury case for your injuries. Below include some frequently asked questions by our personal injury lawyer in Sarnia about the initial steps to take in a personal injury case.

If hurt in an accident, our personal injury lawyer in Sarnia explains what to do first

As aforementioned, the first step you should always take after being hurt in an accident is to look after your health. But, if you’ve already done this, there are numerous measures to take which will help to preserve your rights to file a personal injury claim. The following steps are valid in many situations and there isn’t any “right” order to take.

  • Gather proof that may point to who caused the incident, and the damage that was caused by the accident. Photos are helpful here.
  • Jot down all things that occurred to you following the accident. It might involve things such as hospital visits, medical bills, any lost wages or work, etc.
  • Make certain that you obtain the contact information and names of any witnesses which might’ve observed the accident. Call these individuals to confirm their contact details.
  • If you talk with other individuals which were involved within the accident, make certain that you take notes about the conversation.
  • Tell anybody which you might file suit against that you’re prepared to file a claim for your property damage and injuries.

How long do you have to notify an individual that I’m filing a claim for the personal injury?

If you’re prepared to file suit against a person or some other entity which isn’t a government agency or the government, there isn’t a set time limitation where you must notify that individual of your intention to file a suit. But, this doesn’t mean you ought to take your time with the matter. By efficiently and quickly acting, you’ll potentially increase your odds of resolving the claim quicker than if you delay.

For more details on our personal injury lawyer in Sarnia contact The Law Office of Paciocco and Mellow at 519-915-7673 (SORE).

What You Need to Know About a Personal Injury Lawyer Chatham

If you’re severely injured in an incident with an Uber driver, deciding what insurance policy will apply, will be an initial measure in your case. Our personal injury lawyer in Chatham will go over the details:

Our personal injury lawyer in Chatham Goes over Uber’s Commercial Policy

Uber, according to their website, maintains a commercial policy that is issued by the James River Insurance Company via its completely owned subsidiary Rasier, which directly contracts with Uber drivers.

This commercial policy will cover liability circumstances as a “Named Operator” accepted a ride and is in-route to pick their passengers up or are transporting the passengers during the time of the collision.

The commercial policy offers coverage up to one million dollars/ incident for property damage or bodily injury to passengers or 3rd parties involved in an auto collision with an Uber driver. The policy, according to Uber additionally offers one million dollars of underinsured/uninsured motorist coverage in order to protect their passengers.

This Uber policy applies as a driver accepted a trip, up to its conclusion, as well as is going to be the primary liability coverage for an Uber driver in the instance of an accident unless an Uber driver has additional commercial coverage.

Uber’s Between Rides Contingent Coverage

Also, Uber will have a contingency policy for circumstances between rides in which a driver is waiting for a ride, yet doesn’t have personal coverage which applies. But, between ride coverage offers a lot less liability coverage than this commercial policy. Liability limitations for between rides Uber policy will be restricted to $50,000/ person/$100,000/ accident with an extra up to $25,000 for property damage.

Drivers Personal Policy

If an Uber driver hasn’t accepted a ride during the time of the auto collision, the personal automobile policy is going to offer liability coverage for collisions caused by an Uber driver. If a driver’s policy lapsed, between rides contingent policy that is forth potentially will kick in.

For those injured when travelling with an Uber driver, the commercial policy provides protection for the negligence of an Uber driver and additionally for circumstances in which an accident is the other motorist’s fault, and a driver has inadequate insurance coverage or no insurance.

For more details on our personal injury lawyer in Chatham contact The Law Office of Paciocco and Mellow at 519-915-7673 (SORE).

How to Find an Injury Law Lawyer in Sarnia

The truth that mishaps are pretty commonplace doesn’t detract from the confusion and pain which may result as an injury or accident occurs to you or a family member. If you determine to take measures in protecting your legal rights following an injury or accident, you might have numerous questions in regard to “personal injury” claims. Allow our injury law lawyer in Sarnia to explain:

Our injury law lawyer in Sarnia explains what a “Personal Injury” Case is

“Personal injury” claims include legal disputes which come up when one individual experiences harm from an injury or accident, and somebody else may legally be responsible for that harm. Personal injury cases may become formalized via a civil court proceeding which seek to find other people at fault via a court judgment or, as is more typical, these sorts of disputes might be solved through an informal settlement prior to any lawsuit becoming filed:

Unlike criminal cases, (formal “lawsuits” that become initiated by the government), formal personal injury cases usually start as a private individual (“plaintiff”) will file a civil “complaint” against one other business, person, corporation, or a government agency (“defendant”), and alleged that they acted irresponsibly or carelessly in conjunction with an injury or accident which caused harm. The action is referred to as “filing a lawsuit”.

Informal Settlement

Realistically, many disputes over fault for an injury or accident get resolved through early informal settlement, typically among the ones personally involved within the dispute, their insurers, as well as lawyers who represent both sides. Generally, a settlement will take the form of negotiation, which is followed up by a written contract where both sides forgo all further action (like a lawsuit), instead choosing to resolve the situation through payment of an amount of money that they both agree to.

What’s a Statute of Limitations?

Plaintiffs will have a restricted time in which to file the lawsuit, referred to as a “statute of limitations.” In general, the time dictated by the statute of limitations starts as the plaintiff discovers the injury or is injured

Where are the Laws Governing Personal Injury Claims?

Unlike additional areas of law which find their rules in statutes (like penal codes within criminal cases), the creation of personal injury law has mostly taken place through decisions by the court, and in treatises created by legal scholars.

For more details on our injury law lawyer in Sarnia contact The Law Office of Paciocco and Mellow at 519-915-7673 (SORE).

Are You in Need of an Injury Law Lawyer Chatham

Personal injury law will refer to the legal structure which deals with cases where an individual has been psychologically or physically injured through the negligence or actions of another entity or person. Usually, these cases fall under civil, instead of criminal, jurisdiction. Our Injury Law Lawyer in Chatham is here to discuss what personal injury law is:

Let our Injury Law Lawyer in Chatham handle your injury case

The majority of the time, personal injury law deals with injuries which were brought about through negligence, by either an organization or individual. These cases usually assert that an injury wouldn’t have happened if the responsible party was duly diligent.

Auto injury accidents

Auto injury accidents usually are dealt with via personal injury law. Within some areas, accidents are thought to be “no fault” circumstances and will require every person involved to pay her or his own medical fees. However, in “fault” areas, if an individual may be discovered responsible for causing an incident, she or he might be responsible for the medical charges and psychological procedure of any victims involved. Automobile injury accidents may include vehicle collisions, collisions with additional vehicles like motorcycles or bikes, and accidents which involve pedestrians and vehicles. Usually, in personal injury law, just the psychological and medical expenses are at stake; destruction to additional cars is dealt with through property law.

Medical malpractice

It’s a major personal injury law area. Individuals who think they were poorly treated, misdiagnosed, or injured as a consequence of negligence or a bad technique sometimes may sue physicians for malpractice underneath statutes of personal injury law. To prove malpractice, a prosecutor has to show that a physician inappropriately acted, that a patient would not have been injured without those wrongful actions of a doctor, and that there are concise damages, like reconstructive surgery or other treatment, which may be given.

Slip and fall accidents

Such accidents might fall underneath the personal injury law jurisdiction. Those happen as an individual trips or experiences an injury on additional individual’s property. In order to prove fault, a prosecution in the case has to show that an accident was caused by the owner’s negligence to offer safe lights, correct staircases, or additional safety steps which would’ve prevented the accident from happening.

For more details on our injury law lawyer in Chatham contact The Law Office of Paciocco and Mellow at 519-915-7673 (SORE).

Accident Injury Lawyer: Frequently Asked Questions

Have you ever been in an accident where you were injured and it was clearly another person’s fault? If so, you may be considering filing a lawsuit in order to recover the compensation for the damages and injuries you suffered from. However, if you are thinking about filing a lawsuit, then you likely have some questions regarding the process. Some of the most commonly asked questions that accident injury lawyers see are highlighted here.

What will the lawsuit cost you?

Most personal injury lawyers offer their services on a contingency fee basis. This means that you do not pay unless they are able to successfully recover damages for your case. If your case is successful, then the lawyers will retain a certain percentage of what is recovered to cover their costs that were incurred during the proceedings.

Do you have an actual legal claim?

Once you are injured in an accident, one of the first things you will likely wonder is whether or not you have an actual legal claim. In many cases it will be difficult to understand since you do not have any proper legal training. However, when you hire a lawyer they will investigate the situation and be able to determine whether or not you have a legal claim worth pursuing.

Can you handle the claim alone, or should you hire a lawyer?

After an accident you may want to settle the issue quickly and then move on with your life; however, this may have serious repercussions in the future. An injury lawyer in Sarnia will ensure that you receive a fair offer for compensation and that your rights are protected. This may mean that the case takes a bit longer than you would like, but it will be well worth it in the end.

Should you take the first settlement amount offered by the insurance company?

You should always remember that insurance companies are in the business to make money. This means they are going to minimize any settlement that they offer. With the services of an lawyer, you can have someone working for you to ensure that you receive the maximum amount of compensation for the damages and injuries that you suffered.

What will your case be worth?

There is no possible way to generalize the value of any personal injury case. The fact is that the details of the situation are what really matter when determining the amount that your case is worth.

Factors that will affect Your Settlement Amount for a Personal Injury

One of the most common questions asked by those filing a personal injury claim is how much they may be able to receive for the injury they received. There are a number of factors that will be involved with determining the final amount that your claim is going to be settled for. It can be much more complicated than just adding up the bills and then adding in a random amount for the suffering and pain you suffered.

Some of the other factors that will affect the settlement’s value include the proof of a person’s liability, the city or country where the injury took place, if other medical treatments were considered reasonable or necessary, the driving record of the party who is at fault. In most cases, when trying to determine the value of your injury, you will need the help of an accident lawyer in Chatham.

Liability Issues

Liability must first be determined prior to setting a compensation price. If you are unable to convince the insurance adjuster that the other person is at fault for the accident, then you will wind up with absolutely no compensation at all. If there is no proof of liability, there is no settlement.

Location of the Accident

The location where the accident took place will have a huge impact on the total compensation that is received. The verdicts can be affected quite a bit by the actual location of an accident. Be sure your attorney fully explains this fact prior to finalizing a claim.

Medical Costs that are Necessary or Reasonable

There is no way to be confident that the insurance adjuster will just agree with the bills that are presented to be reimbursed. The adjuster is only going to be responsible for paying the costs that were absolutely necessary for the injury that you suffered from.

Taking the time to find out the potential settlement will help to ensure you know what to expect from the person who is at fault. There is no way to determine this for sure, but taking the time to speak with an attorney will help you find the best plausible answer for the amount of compensation that you may possibly be entitled to. Take your time and talk with several attorneys if necessary to find the very best settlement for your case and injury.