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Slips and Falls on Other People’s Property: What You Need to Know

Let’s face it: it’s cold here, and the winters are icy. In most cases, business owners and property owners do have a duty to keep property that they know is going to attract the public or house guests reasonably safe. In instances where their negligence has led to an injury from a preventable slip and fall, they will owe damages to a plaintiff. What you probably don’t know is that homeowner’s insurance and business insurance covers these accidents. This is a bit of a mixed blessing, because the insurance company will be representing the defendant very often if they are insured, and insurance lawyers are extremely aggressive. They want to protect the insurance company from paying out the claim regardless of whether or not their client was at fault. That means you need a skilled personal injury attorney to take your case, you want them to be someone who can and will stand up to insurance company lawyers.

 

The major difficulty in a slip and fall case is proving that the property owner is responsible for the accident. In order to prove that the property owner is responsible, the plaintiff must be able to show that the defendant, by some means, could have prevented the accident beforehand. That being said, there are some conditions under which a property owner might not be held liable. The fundamental question here is causality. If the plaintiff is found to have taken a risk in not avoiding an icy part of a parking lot, or there were some clear signs around that the plaintiff should have heeded, then the property owner may not be responsible for the fall at all.

 

The property owner does, however, have a duty to maintain reasonably safe conditions. For instance, an icy parking lot that hasn’t been plowed that expects a lot of early morning business can be held liable for not having the area plowed. A property owner will be held liable under the condition that they created conditions under which a reasonable person, using reasonable judgment, would have slipped and fallen under the conditions they created.

 

For those who think they have a case against a careless property owner who maintained unsafe conditions, keeping records of everything is of paramount importance. It may not be feasible at the time to take pictures of the parking lot directly after the accident, but hanging on to medical records, especially if an ambulance is involved, can go a long way toward helping your case. If you fall under unsafe conditions, it isn’t your fault. You are owed damages.

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Contributory and Comparative Negligence in South Dakota

One thing personal injury lawyers have to contend with in all 50 states is the problem of comparative negligence. Comparative negligence involves cases in which fault cannot be firmly established in one direction or the other. In other words, if an individual is partly to blame for an accident, it may be determined that the individual is owed a percentage of the damages. But South Dakota laws differ from the rest of the nation, in terms of this metric for assigning fault. For those in Sioux Falls, you’re going to want to find a personal injury lawyer that understands how the system works.

 

The metric for determining fault in South Dakota is based on a system of slight / gross levels of fault. If it can be determined that in individual in this is responsible for more than a “slight” amount of fault in a personal injury case, that they might not have any legal recourse to pursue action against another party. In the case of Wood v. City of Crooks, it was determined by the South Dakota Supreme Court that, rigorously defined, a fault level of over 30% precluded a plaintiff from pursuing action against a defendant in a personal injury suit.

 

Of course, the major problem is determining what constitutes fault of over 30%, and insurance company lawyers are very good at making it seem like any amount of fault successfully satisfies and exceeds that threshold. It ends up being that South Dakota is an extremely lucrative market for Insurance Companies that don’t like paying out claims. It’s then left to an arbiter or the court to determine what percentage of fault the plaintiff was responsible for, and not the extent to which the defendant was at fault.

 

“It’s a troublesome law,” says one injury lawyer from Sioux Falls. “If a defendant in a case is to blame, even partly for an injury incurred to someone, then they contributed to the injury. In other words, the injury would not have happened if the defendant hadn’t contributed to it some way. Nearly every other state assigns a percentage of blame that modifies the settlement figure, but in South Dakota, that blame could be used as a reason for dismissing your case entirely.”

 

“Obviously, there’s a number of folks out there that are interested in moving South Dakota toward a full comparative fault system,” he continued, “but so long as the law is on the books and that’s the way it works, we have to work with it.”

 

“The problem is that a law like this is not enforced consistently. One jury may find that if the defendant’s contributory negligence exceeds the plaintiffs, that the case should move forward. Another jury may determine that if the plaintiff has any contributory negligence, the plaintiff should be awarded nothing. It all ends up boiling down to the quality of your lawyer.”

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Crimes versus Torts (What is a tort?)

In our system of law, there are civil actions and criminal actions that can be litigated in court.   In a criminal case, a defendant is one who has committed an offense against the laws of the State, which were enacted to protect the health, safety and welfare of the people.  Criminal law focuses on punishment.  When a person commits a crime, he or she is either immediately arrested or a warrant is issued for his or her arrest.  A bond is then set either administratively or by a judge and the person is incarcerated until trial or released on that bond promising to appear.  A person is considered innocent until proven guilty by a jury of his or her peers by a unanimous decision.  The standard for a guilty verdict is beyond a reasonable doubt.  Once convicted, a criminal will be sentenced by a judge to a term of imprisonment and/or probation, or fined as punishment for their crime.

In contrast to criminal law, a civil tort action involves a private plaintiff-victim seeking compensation (usually money) for the harm caused by another’s actions or failure to act.    In a civil tort action the injured plaintiff must prove his or her case by a preponderance of the evidence (by the greater convincing force) rather than the much more burdensome criminal law standard of beyond a reasonable doubt.

Most civil tort actions involve personal injury cases based on negligence.  Negligence is a harm caused by the failure to exercise the appropriate level of care in a particular circumstance.  In South Dakota there are four elements to negligence.  There is a duty of due care, then a breach of that duty, legal causation, and damages due to that breach of duty of due care.  Also, in South Dakota there is a comparative negligence statute, meaning that if the injured party were to be partially at fault, that injured party’s damages may be reduced by that injured party’s contributory negligence or percentage of fault.  In South Dakota an injured party’s recovery may be barred if that injured party’s contributory negligence is more than slight in comparison to the negligence of the defendant(s)

Other types of civil torts include intentional torts such as assault, battery, trespass, conversion and false imprisonment.  Many intentional torts are also crimes.    In those cases, in addition to receiving compensatory damages, if the prevailing injured plaintiff can further prove by a preponderance of the evidence that the defendant-tortfeasor is guilty of fraud, oppression or malice, then the injured plaintiff may also be entitled to an award of punitive or exemplary damages to punish the defendant-tortfeasor.

If you believe that you have been injured as a result of the negligence, crime, or liability of another contact the experienced lawyers at Wilka & Welter, LLP for a no charge review of your tort case.  You may be entitled to compensation for your loss.

What is personal injury

Personal Injury: Just What Is It?

Personal injury is a legal term that refers to an injury inflicted upon the body, emotions, or mind. Personal injury does not refer to injury or damage caused to the property owned by an individual, that reflects other legal actions altogether.

 

Personal Injury Lawyers: All There Is To Know

Finding a good personal injury attorney in Sioux Falls can be a real pain, but it does not have to be. When faced with a personal injury case, the term negligence and neglect will come up over and over again. It is important to consider neglect and how someone might be accused of negligence, in either side of the case. For example, when it comes to dealing with a traffic accident, both drivers could be at fault, rendering them as sharing the same amount of neglect in that situation.When pursuing help form a personal injury attorney, it is important to understand the facts ahead of time.

“Negligence” as it is described above, is part of a larger legal umbrella term that can refer to negligence, gross negligence, intentional misconduct, or reckless conduct. A good personal injury attorney is there to make sure that compensation and settlements can be won, and that negligence is identified properly.

 

When someone is the victim of a negligent person, it can cause a lot of grief, time, and take a lot of money to get his or her lives back on track. The stress associated with dealing with this ordeal is already a lot to handle, to say the least. That’s why personal injury lawyers are there to help settle the score, and make it so that he or she is fully compensated, and receives the right services, treatment, and attention they require throughout the case.

 

 

Anything Could Be Around The Corner

At work, school, on the streets, at shopping centers, concert venues and elsewhere, the threats of a negligent person could come from anywhere. It is important to stay focused in order to avoid becoming the victim of a negligent person, but in the event that one could not prevent something happening to them, inflicted by a negligent person, then the personal injury attorney must step in to insure that he or she is treated properly in court.

 

If you or someone you know becomes the victim of a negligent person, then the next phone call you make could be directed towards a personal injury specialist. There are countless personal injury lawyers to choose from in the state of South Dakota, and the entire United States for that matter. Making the right choice has a lot to do with location, preference, cost, and expertise.

 

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The Lawyers Of Today

Lawyers, or attorneys, have helped shape the justice system of today in myriad ways. Lawyers are there to protect and argue a case in court. Lawyers also help people win big settlements, should their case come out on top.

In this article, we will look at some of the many types of lawyers out there, to help you get a feel for which type of lawyer is most applicable for the situation at hand.

 

Injury and Disability

One of the biggest problems facing people that experience an event that causes great injury or even disability is that it is often an ongoing road to recovery, if any. People aren’t magically healed in every instance. Sometimes, all that one can choose to do is make the pain and grief a little more bearable.

Someone who experiences injury or becomes permanently disabled may have a number of hospital bills to pay for as well. This is what lawyers in the injury and disability sector try to help with. Injury and disability lawyers are there to make the process of painful recovery go as smoothly as possible, while being fully compensated for the large expenses that come with the inevitable process.

 

Criminal Defense

Whether one is charged with a felony or a misdemeanor, criminal defense lawyers are there to provide the right kind of guidance and support throughout the case.

Misdemeanors and felonies both have serious impacts on the well being of those accused of doing such crimes. These charges can be life changing, for the worse, which is why finding a skilled, experienced criminal defense attorney will help in the long run.

 

Family Law

Dealing with a situation that requires family law can be a real mess. Since these lawyers deal with domestic issues in particular, things can get pretty emotional, heated, and hard to cope with. Often times the solutions to such domestic disputes aren’t that black and white, and take a lot of time and energy to sort out. Thankfully, family lawyers are skilled in communicating with families and are well suited to take on any domestic partner related case as well. Child custody, divorce, marital property, whatever the case, family law attorneys are there to help!

 

DUI (Driving Under the Influence)

Driving while under the influence of alcohol, or any other substance for that matter is illegal in South Dakota and the rest of the United States. If one’s blood alcohol concentration (BAC) level is more than 0.08%, he or she will be charged with a DUI.

One silly little DUI charge can have serious repercussions as it can prove to be difficult to land a job, get back your license, and own a car. Choosing the right DUI/DWI attorney could save your life.

 

Whatever your case, the lawyers of Sioux Falls are here to help.

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What Is The Price Of Neglect?

There are plenty of freedoms that Americans take for granted every day. These are freedoms people come to expect, but these freedoms also come at a cost. Not everybody appreciates these freedoms at the same level as others, and as a result, negligence tends to come to fruition. What is negligence exactly? Well, negligence is the act of failing to heed, or paying little to no attention to one’s surroundings. Neglect is rife in the world these days, it is impossible to predict when a person will be a victim of extreme negligence, but thankfully, there are ways of preventing, and solving neglect.

Enter the personal injury lawyer. The personal injury lawyer is there to help people who have been the victim of negligence by the hands of another person. Vehicle accidents, insurance claims, workers’ comp, disability, wrongful death, amputation, etc. These are just some of the areas professional personal injury lawyers specialize in. It’s true that most of these cases tend to happen on the road, and involve driving/cars. However, there are many workplace incidents that occur whereby a terrible accident happens and someone is wrongfully injured.

Essentially, being injured through the negligence of another can happen almost anywhere. Many people who have experienced, or have been the victims of negligence at the hands of another, can earn millions in settlements and awards, depending on the damage etc. So even though a loved one might have experienced severe trauma, pain, stress, and confusion, they may be eligible for compensation.

 

Preventing Negligence

Education plays a huge role in making sure people go about their day in a safe manner. Education can help people with math, science, and English, but can it help people act accordingly in real life? It should, and for the better part, it does. However, a lot of education comes from the home as well as the school. Parents also play a huge role in making sure their children are primed for adulthood. They make sure their kids look twice before crossing the street, they give advice on manners and social etiquette, and they tell kids that it is wrong to hit other kids or call them bad names. This may be fine and well, but sometimes negligence comes to fruition in ways never thought imaginable. This is essentially due to the simple fact that people aren’t paying enough attention to their surroundings, which should be a given.

 

Looking For A Lawyer in Sioux Falls?
The cascading big Sioux river in all its might, the Sioux and Lakota history, the quiet, mid-western air are all wonderful aspects that make Sioux Falls a wonderful place to live. Thankfully, the area is home to a number of practicing personal injury lawyers. Finding one is a simple click or call away!

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3 Secrets to Finding the Best Personal Injury Attorney

Personal injury law is often made more difficult on victims by the fact that insurance companies often use their own lawyers to defend their clients against claims, and they do this exclusively for the insurance company, handling hundreds of cases each year to protect their client (the insurance company) from having to pay out claims against their clients (the insured). In order to win a suit, you have to have a good lawyer. If you’re looking for a personal injury lawyer in Sioux Falls, this is what you need to know.

 

#1. Find an Attorney That Specializes in Personal Injury

 

Personal injury law is a specialized practice that involves intricate rules. The first thing an insurance company is going to do is research the attorney they’re facing. If they find out that the lawyer you’ve hired to represent you is a jack of all trades, they’re going to try to lowball you in the settlement. It’s a serious risk to your case if you don’t hire an attorney that specializes in personal injury tort claims.

 

#2. Find an Attorney with Trial Experience

 

Bringing an attorney without trial experience to a negotiation is like bringing a knife to a gunfight. Insurance company lawyers are going to know right off the bat if your attorney has any trial experience or not. If the answer is not, then they’re going to lowball you to death, figuring the attorney doesn’t know how to try a case. Guess what? They do and have tried cases. So the insurance company won’t budge on a bad offer and you’re feckless attorney will fold when his empty threats are called. The better your case, the more important it is you have an attorney who’s willing to take it to court if necessary.

 

#3. Find an Attorney with Sufficient Resources to Try Your Case Properly

 

If your case requires expert witnesses, you’re going to need a lawyer with a line of credit available. It helps if they have a history of success as well. The more important your case is and the more egregious the damages, the more important it is that you have an attorney that can handle the case. A bad attorney is going to hope for a lowball settlement and after they’ve taken their cut, it’s still going to be better than they normally do. For you on the other hand, it was your one shot to get compensated for your injury and now that’s gone. The mere presence of a high profile trial attorney is going to be worth the cost because they will immediately put the insurance company on the defensive. Insurance companies bank on winning a handful of cases and settling the majority. Every once in a while they’re faced with a quality attorney and this is when they’re forced to pay out the damages rightfully owed to the victim.

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South Dakota Alternatives to Sentencing Part 2

Drug Court

In South Dakota, if you are a repeat drug offender (not a dealer or sex offender), prison bound, and live in a county where drug court exists, you are eligible for participation in drug court.  The drug court was formed as a “creative alternative aimed at keeping more individuals out of prison, lowering costs to the state, reducing crime and recidivism (re-offending).”  In order to participate, you must plead guilty to your drug-related crime and be sentenced.  That sentence is then deferred after successful application to drug court.  Failure to meet program requirements will mean immediate imposition of the deferred sentence.  Upon successful completion of the one-year program, your felony will remain on your permanent record; however, your sentence will be completed without having to spend time in prison.

There are ten key components to drug courts in general:

#1:  Drug Courts integrate alcohol and other drug treatment services with justice system case processing.

 

#2:   Using a non-adversarial approach, prosecution and defense counsel promote public safety while protecting participants’ due process rights.

 

#3:  Eligible participants are identified early and promptly placed in the Drug Court program.

 

#4:  Drug Courts provide access to a continuum of alcohol and other drug related treatment and rehabilitation services.

 

#5:  Abstinence is monitored by frequent alcohol and other drug testing.

 

#6:  A coordinated strategy governs Drug Court responses to participant’s compliance.

 

#7:  Ongoing judicial interaction with each drug court participant is essential.

 

#8:  Monitoring and evaluation measure the achievement of program goals and gauge effectiveness.

 

#9:  Continuing interdisciplinary education promotes effective Drug Court planning, implementation, and operations.

 

#10:  Forging partnerships among Drug Courts, public agencies, and community-based organizations generates local support and enhances Drug court effectiveness.

 

By adhering to these principals the drug court is able to reduce drug abuse and re-offending by reaching “targeted” offenders, increase public safety by integrating court, community and treatment, reduce incarceration as a means for dealing with substance abuse, and keep offenders working, parenting and participating in the community.  Each drug court participant is expected to pay for their participation.  They must maintain housing and pay for rent, utilities and other expenses.  They must be employed and pay court costs, fines and any other bills accumulated.*

If you or someone you know has been arrested for a felony drug crime and are concerned about potential prison, call the lawyers at Wilka and Welter for a confidential review of your case.  You may be eligible for drug court and be able to continue your life with this alternative to sentencing.

 

*NOTES FROM A DRUG COURT OBSERVATION by Joseph Smyrak:

In a recent observation of the Minnehaha County Drug Court, I found the courtroom packed with participants.  Judge Patricia Riepel volunteers her time to preside over the proceedings.  As each participant is called, they state to the court the number of days they have been in the program.  The Judge is updated by a team of substance abuse counselors, deputy public defenders, prosecutors and probation officers who are also in court.  The participant appears in court based on the phase they are in.  Phases one and two require weekly appearances, three is bi-weekly and four is monthly.  Each phase has steps that must be completed in a checklist the participant is responsible for keeping.  The Judge makes the determination about whether a participant may proceed to the next stage.  During the proceeding the participant is encouraged by the Judge for their accomplishments by drawing from a fishbowl of incentives.  Negative attendance or participation is met with stern warnings.  As each participant advances in phases, a medal and a hug is given by the Judge.  I left the courtroom feeling very positive and encouraged by what I observed.

 

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South Dakota Alternatives to Sentencing Part 1

In the state of South Dakota, if you have committed a crime, there exist two methods by which you may be able to avoid the imposition of a sentence and eventually have that crime removed from your permanent record.  The first alternative to sentencing is called Suspended Imposition of Sentence, which does not require a judgment of guilt and may be used in certain cases for both a felony and a misdemeanor crime.  The second alternative, the topic of next month’s blog, is Drug Court, which requires a guilty judgment, but removes the plea from a permanent record upon successful completion.

 

Suspended Imposition of Sentence (Suspended Imp)

 

If you are convicted of a crime not punishable by death or life in prison, either misdemeanor or felony, have never before been convicted of a felony, and have never before been granted a suspended imposition of sentence by any other state, you are entitled by law to ask the sentencing judge for a suspended imposition of sentence.  If the judge agrees that it is in the best interest of justice and in your best interest, the judge may institute a probationary period in lieu of a judgment of guilt and imposition of sentence.  The probation conditions are at the discretion of the judge and any violation can lead to revocation of the suspended imposition and the judge may impose the sentence without any credit for the period of probation already completed.  In the legislative session of 2016, the South Dakota legislature made clear the law on suspended impositions. It now states a person may use one suspended imposition for a felony and one for a misdemeanor charge, meaning that you may use two in a lifetime.

It is important to understand that a suspended imposition only seals your record from the public view once you have successfully completed your term of probation.  It DOES NOT erase your record.  For instance, if you are charged with a DUI and use your suspended imposition and you get another DUI within ten years, the court will still consider it a second DUI.  Additionally, the penalty that is suspended over you is the maximum penalty by law that you could have been sentenced for the offense.  Meaning, if you receive a Class 1 Misdemeanor charge, the penalty could be one year in jail and a one thousand dollar fine.  If you violate the terms of the suspended imposition, the penalty is usually much more harsh than if you would have made a plea deal with the prosecution and pled guilty to the offense.  Finally, a suspended imposition does not stop the revocation of a person’s driver’s license, which is an administrative penalty in a DUI conviction.

If you have been charged with a crime and think that you might qualify for a suspended imposition, there are many factors to consider and you will need an attorney to argue your case before a judge.  The lawyers at Wilka and Welter have the experience and reputation you need to make your best case.

 

 

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Can You Handle Yourself in Court If You’re Injured?

Life is hard enough. Triple that effect when you are injured or become disabled due to a:

  • Car or automobile accident
  • Work-related accident
  • Medical negligence
  • Slip or trip accident

If you are injured in any of these accidents that wasn’t your fault, you may be entitled to make a claim for compensation. When considering a disability attorney in Sioux Falls, hire one with a reputation for helping people get compensated for their injuries. It is important that you hire an established law firm that tries to ensure that injured or disabled clients receive justice.

When searching for trial lawyers to represent you in Sioux Falls, make sure that they have experience dealing with clients who had:

  • Amputations
  • Broken or fractured bones
  • Concussion and other brain injuries
  • Facial scars
  • Burn injuries
  • Spinal injuries and paralysis
  • Wrongful death

If you or a loved one has experienced any of these traumatic issues, don’t wait until the last minute to hire one. As of 2015, per the CDC, unintentional injury was either the leading or top 5 cause of death for all age groups in the United States. If the person wasn’t killed, the accident has likely left them permanently or temporarily disabled. This cause many victims to experience financial hardship due to mounting medical bills that they cannot pay due to the inability to work.

If that describes you, please do not allow insurance companies to just “handle it.” There are have been (and still are) plenty of cases where accident victims did not receive fair compensation for their injuries or disablement. Some insurance companies simply do not have your best interest at heart.

Hire an attorney who has fought hard for every client who was involved in an accident due to the negligence of others. Proper representation in a court of law increases your chances of receiving full compensation for your injuries or disabilities. With that said, get with a law firm that has helped hundreds of disabled victims receive millions of dollars in awards and settlements.

Can You Take Care of Yourself in A Court of Law?

 

Ask yourself the above question. Well…can you? It can be quite daunting to represent yourself in court, especially in a disability case. No matter how at-fault the other party is, it will be tough for you to receive justice if not properly represented. That’s why it is imperative that you hire a disability attorney who has years of experience. They should be able to utilize their knowledge and expertise to help people like you receive financial justice.

Are You Ready to Receive Financial Justice?

 

Don’t let medical bills and other financial hardships get in your way of living a fulfilling life. Hire a disability attorney in Sioux Falls who’s ready to handle your case immediately.