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War on Fragrance

I remember in 2009 when Virginia’s then-Governor, Tim Kaine , declared war on smoking in restaurants. No one thought such a law would pass, but it did. Today, you walk into a Virginia restaurant and cannot even get a whiff of smoke. Of course, I wish he would have ‘also gone after those blooming onions at Outback Steakhouse. Always ruins my appetite when I see those… but I digress.

I remember an old Dial Soap television ad where the jingle would remind, “Aren’t you glad you use dial, don’t you wish everybody did?”. Now, fragrances are coming under scrutiny, much the way that second-hand cigarette smoke was viewed.

Currently, the American Lung Association is encouraging employers to institute a fragrance-free policy for the workplace. In 2009 the Center for Disease Control instituted a policy for their workers that stated the following:

CDC will ensure that products used in the workplace, such as soaps, cleaning products, paints, etc., are safe and odor-free or emit low levels of volatile organic compounds (VOCs) to the fullest extent feasible. Only green cleaning products shall be specified and used within CDC facilities and leased spaces unless otherwise approved by the Office of Health and Safety.”

Those workers dealing with Chronic Obstructive Pulmonary Disorder (COPD… which has become known because of TV commercials), Asthma, Allergies, Autoimmune disorders and even migraines, can truly have difficulty with fragrances.

I happen to be a person who enjoys fragrance. While going on a neighborhood walk right now, the smell of honeysuckle fills the air near my house.  Walking into Saks Fifth Avenue stores, I find myself wandering to to the fragrance counter. And, I don’t even want to get started on the smell of good fixin’s in the air! For me, I don’t want to give that up.

On the flip side, I am effected by such things as new carpet smells, a lot of flowers in an enclosed space, and sitting behind women in church who are wearing real strong perfume, just to name a few.

So, I can see both sides of the fragrance world. There are many lawsuits pending or reported that involve suing for damages from allergic reactions. The American with Disabilities Act could even apply in some cases, if health is effected from a failure to accommodate.

I am getting bogged down in law here. But, I find it a very interesting topic. I never thought there would be “no-smoking” policies. I assumed that the tobacco companies were too strong. So, who knows what the future holds for fragrance.

Have a great weekend. I hope you can breathe deeply and enjoy!


New Bike and Text Laws

Virginia pinpoints July 1 as the day that new laws take effect that were passed in the past General Assembly session. summarizes several laws right here. For the purposes of this blog, I thought I would point out two new laws relating to travel. Specifically, new laws regarding bike riders versus cars; and drivers who text while driving.

First, SB1222 merged into law showing that the Senate and House were in agreement to increase penalties for texting. As of Tuesday, police can now stop and ticket drivers for texting as a sole offense; rather than having to stop them for something else, and adding texting as a seccondary offense.

The fine for texting now increases from $20 to$125. In addition, the law also provides greater fines for texting if the violation also is included with a conviction of reckless driving. Obviously, the legislature has decided to put more emphasis on texting and driving. For those keeping score, six delegates voted against the bill in a 91-6 vote.

The second law discussion relates to the amount of space that a car must give a bike rider. A car or truck passing a bike must give a minimum clearance of at least three feet clearance as the car passes and is safely clear.  That distance is now increased from two feet and also applies to mobility devices, mopeds or something like a wagon that is drawn by a horse. (SB97) If word gets out on the passage of this bill, it may save lives!

DID YOU KNOW that macadamia nuts are toxic to dogs.

And for pic o’ day, a bit of pool time:

pool time


Parasailing Dangers

     It  looks fun and carefree. The boat is pulling the person with a parachute. Hundreds of feet high in the air, there sits someone laughing and giggling as they dangle their feet from a harness.  Almost always, it’s a tourist who decided to really let go during vacation. There’s probably not much thought about safety because everybody does it, so it must be safe.

     The New York Times recently reported on the dangers of parasailing.  In Florida, there are upwards of 120 parasailing companies operating during peak season. Not surprisingly, more people strap into harnesses over those Florida seas, than anywhere else. Unknown to most is that there is almost no regulation across the entire United States.

      Vacation causes people to relax. So, people don’t think about safety or whether the harnesses and equipment have been inspected. In Florida, the only requirement for parasailing is that the boat must be seaworthy and the captain must have a valid boating license.

     The information on parasailing injuries and deaths are a bit sketchy. Worldwide, it is estimated that there have been 72 parasailing deaths since 1982; and there have been 4 deaths in Florida in the last two years.

     Since this blog is written from a Virginia law slant, here is the good news; Only two states have some form of parasailing laws and regulations: Virginia and New Jersey.

     Virginia Code Section 29.1-735.3 grants authority to the Board of Game and Inland Fisheries to regulate parasail operators. Some of the regulations include requirements for the harness size, how secure the parasail canopy will be and the time that a boat can go out before as it relates to sunrise and sunset.  The law also addresses how close the boat can be to the shoreline. Maybe that’s why we don’t see a lot of parasailing operators on the Virginia coast.

     It’s easy to get caught up in the excitement of parasailing. Maybe you’re in the Bahamas; it’s perfect weather and it sure looks fun. Maybe you’ll stop and consider the circumstances. You’ll look at that boat before jumping into the harness and think how just about anyone can stick a boat in the water and start charging to put you in that harness and send you up in that parachute. Maybe it would just be safer and more relaxing to just take a drive to Washington D.C.

     For pic o’ day, I thought I would post a picture that seems festive and “vacation-like”:

CNBC Says Virginia is #1

     A retail store manager hired me to represent her for injuries. She had been the first person to the store that morning. It was still dark. She entered the store and made her way to the light switch.

     Unbeknownst to her, the hired cleaning company had worked late and had just left the premises.  The newly waxed floor was still wet. My client couldn’t see the floor because it was between the door and the light switch.

     She fell, in the dark, on the slippery floor. Her fall was so severe that she ruptured two discs. Because the cleaning company was contracted by the store, we made a claim for her worker’s compensation benefits, as well as a 3rd party claim against the cleaning company.

     The Virginia Supreme Court ultimately ruled that my client’s sole claim was for a job injury under workers compensation. The cleaning company; while not employees of the store, was part of the “common enterprise” of the store. Thus, no third party personal injury claim.    

     If you are a business, then CNBC says that you want to be in Virginia. For 2011, Virginia was picked as being ranked number 1,  as the top state for business.

     Last year,Virgina was number 2. That’s got to be good because no one takes one of those big foam hands to football games, with two fingers sticking up.

     CNBC cites 10 categories that it considers, in arriving at it’s pronouncement for Best State for Business. Things like quality of life and technology; Access to capital and a workforce help make businesses successful.

     Two other important items of the ten include “business friendly” and “Cost of doing business”. Those can be broadly construed. 

     In most states, my client’s story above would have meant that the expense of her injuries would have been paid by the cleaning company. Her employer’s insurance company would have even been reimbursed.

     Instead, her recovery under workers compensation was limited; and the true responsible party was not “hit” with the business expense of paying for creating that dangerous condition, without warning. My client received very little for her injuries under workers compensation, because of the laws in Virginia.

     What is a cost of doing business. Well, if you do something that is reckless as a business, like hiring a driver without a license or someone who regularly does drugs, then you might be responsible for punishment damages.

     In many states, reckless and willful conduct is punishable by money damages, according to what will truly punish that business. Usually, something related to assets and profits are introduced to the jury, to determine what is real punishment, and to send a message.

        In Virginia, there is a limit on such punishment damages. Assets and ability to pay are not part of the equation in determining punishment/punitive damages.  Under Virginia Code 8.01-38.1, the maximum punishment is 350K. If a company is doing a billion in profit, you aren’t punishing them by a verdict or payment of 350K.

     As part of the “10” though, this is called “Cost of doing business”. A business can hire drunk drivers or multiple convicted felons who have previously caused injury by the same conduct, and the punishment damages are still only 350K.

     I think it’s great that Virginia is number one in business. Conversely, the basis for being number one could have adverse effects on the citizens. It might not simply mean we have more jobs or economic prosperity if we are rewarding bad actors in business.

Loss of Consortium:Impact on Family

     Plastic surgeon Dr. Maxwell Maltz tells the story of a woman who came to him for help. She told the doctor about her husband, who had been injured in a fire while trying to save his parents from a burning house.

     Unfortunately, the man’s rescue attempt was unsuccessful and his parents died in the fire. It left the man’s face burned and disfigured. He was physically and emotionally scarred. He then believed that his pain and disfigurement must have been because God was punishing him. After that, the man would not go out in public and didn’t even want his wife to see him.

     When the wife relayed this story, Dr Maltz told her not to worry, “I can restore his face”. The wife did not react as Dr. Maltz expected because she knew that her husband had repeatedly refused help, and that he would not seek treatment from Dr. Maltz.

     Dr. Maltz then asked why she had come to see him, if her husband would not let him operate to fix the disfigurement. “Because” she said, “I want you to disfigure my face so that I can be like him. If I can share his pain, then maybe he will let me back in his life.”

     Dr. Maltz denied her request but was so moved by her sincere request that he was determined to speak to the husband. Knocking on the man’s bedroom door, he called out loudly, “I’m a plastic surgeon, and I want you to know that I can restore your face.”

     There was no response from the other side of the door. “Please come out”.  Again, no response from the man.

     Still speaking through the door, Dr Maltz then decided to tell the man about his wife’s request. “She wants me to disfigure her face, to make her like yours, in the hope that you will let her back into your life. That’s how much she loves you.”

     There was a brief moment of silence. Then, slowly, the doorknob began to turn.

     In Dr. Maltz’s story, we see the injuries to the man. We also see the impact of those injuries on his wife. I can think of many instances, when injuries suffered by my clients, have greatly impacted others in their family.

     In many states, the laws allow a claim for a loss of consortium;  These loss of consortium laws allow the spouse of the injured person; and sometimes, other family members impacted by the injuries or disability, to bring a related claim for damages, that is connected to the underlying injured client’s claim. In Virginia, the insurance industry has done a good job in making sure that the law does not recognize such claims as an avenue of recovery. Virginia does not recognize any claim for loss of consortium. 

     When you hear politicians brag about some bill that they have sponsored, to make Virginia  “business friendly”; that sometimes means that there will be  state economic benefits and more jobs. However, it may really mean that there will be restrictions on a person’s right to economic recovery and and that there will be caps on recovery damages.

     Such “business friendly” politicians may brag about their support of such caps and restrictions. In doing so, they may really be  relieving the true responsible party (defendant) from paying for the damages that have been caused. When that happens; instead of the responsible party paying for the damages; more likely, either the government or you and me become responsible.

     In serious cases, the injuries still exist. Lives and families are still impacted. Behind some closed doors, there are people that have no legal recovery to pursue.

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