Personal Injury

February 22, 2017

Plaintiff’s Slip-and-Fall Case Dismissed Due to Lack of Causation Evidence

In a recent case before a state appellate court, a plaintiff’s premises liability claim against a fast-food restaurant manager was dismissed based on the plaintiff’s failure to present sufficient evidence that the manager’s negligence resulted in her injuries. In rejecting the plaintiff’s claims, the court explained that a plaintiff must present evidence more than “mere speculation” as to how her injury occurred.

The Facts of the Case

The plaintiff slipped and fell as she was entering a fast-food restaurant managed by the defendant. According to the court’s recitation of the facts, the restaurant’s entrance consists of a set of double doors. On her way into the restaurant, the plaintiff made it through the first set of doors without a problem, but she was unable to open the second set of doors. She testified that she was shaking the door, trying to get it to open, when she fell.

After her fall, she noticed that the ground around her was damp and that a rug in the foyer area where she fell was wet. However, when asked, she could not remember exactly what happened in the moments before her fall. Specifically, she stated that “it just happened so fast . . . I just remember pushing on the door, and the next thing I remember is just sitting there.”

December 22, 2016

Court Discusses Parties’ Respective Burdens in Premises Liability Summary Judgment Motion

by Lebowitz & Mzhen

Earlier this month, an appellate court issued a written opinion in a premises liability case brought by a woman whom had slipped and fallen on some icy steps outside a restaurant. In the case, Lowrey v. LMPS & LMPJ, the court took the opportunity to clarify each party’s burden when a defendant seeks summary judgment in a premises liability case. Ultimately, finding that the plaintiff presented insufficient evidence of her claim, the court determined that the defendant was entitled to summary judgment.

The Facts of the Case

Lowrey was leaving Woody’s Diner, an establishment owned and operated by the defendant, when she slipped and fell on a set of icy stairs. Lowrey filed a premises liability case against the owners of the restaurant, claiming that they knew or should have known about the icy steps but failed to do anything to remedy the danger or warn patrons of the slippery condition.

Before trial, the defendant asked the court to dismiss the case against it, arguing that Lowrey did not provide any evidence suggesting that the defendant knew the dangerous condition existed. The trial judge agreed and dismissed the case.

December 1, 2016

Court Allows Civil Claim for Injuries Sustained During DWI Arrest to Proceed

by Lebowitz & Mzhen

The burden of proof is on the state to prove guilt beyond a reasonable doubt in driving while intoxicated (DWI) cases. A defendant can challenge evidence based on the police’s conduct at the time of the arrest. If a traffic stop or search violated a defendant’s constitutional rights, the court may suppress any evidence obtained as a result. In some cases, however, a civil rights violation by an officer might not directly affect the outcome of a DWI case. Instead, a defendant must seek recourse through a civil claim. This is very different from DWI defense, but it is important to understand in cases in which, for example, police intentionally or recklessly cause an injury to a defendant. A New Jersey court recently ruled in favor of a DWI defendant’s claim for this type of alleged injury in Landa v. Twp. of Plainsboro.

Drunk Driving Laws

Although this case took place in New Jersey, DUI is not technically considered a criminal offense there, or under Maryland law, but the procedures involved are very similar to those used in Maryland criminal courts. Prosecutors initiate a case by filing charges against a defendant. They have the burden of proving guilt. The defense’s job, in large part, is to identify defects in the state’s case. A defendant may move to suppress evidence, or even to dismiss a case, prior to trial. If the defendant does not enter a plea, the case goes to trial, where the prosecution must present its case.

A civil claim for injuries takes place in the civil court system. The plaintiff has the burden of proving that the defendant is liable for whatever harm or injury they are claiming. The burden of proof is a preponderance of evidence, which is significantly less stringent than the state’s burden in a DWI case. It essentially means that the plaintiff must prove at least a 51 percent probability that the defendant is responsible.

October 12, 2016

Court Holds Unemployed Plaintiff Is Eligible for Future Earnings Damages Award

by Lebowitz & Mzhen

Earlier this month, one state’s supreme court issued a written opinion discussing the availability of damages for a student-plaintiff who was not employed at the time of the accident but expected to obtain employment after graduation. In the case, Fecke v. Board of Supervisors of Louisiana State University, the court ultimately determined that the plaintiff was eligible to receive damages based on a decrease in her future earnings, although she was not employed at the time of the accident.

The Facts of the Case

Fecke was a college student at Louisiana State University. As a part of one of her courses, Fecke was required to complete an indoor rock climbing assignment at the school’s gym. Fecke scaled the wall without a problem, but on the way down, she fell, fracturing her ankle. She blamed the fall on an employee of the facility. As a result of the fall, she required several surgeries, eventually requiring her ankle to be fused.

Fecke and her family filed a lawsuit against the school. After a jury trial, Fecke was found to be 25% at fault and the University 75% at fault. Fecke and her family were awarded just under $2 million, part of which was an award for loss of future earnings. On appeal, the University appealed several issues, one of which was whether an unemployed college student is eligible for damages based on loss of future earnings.

September 26, 2016

Car Manufacturer Victorious on Appeal of Alleged Breach of Implied Warranty of Merchantability

by Lebowitz & Mzhen

Earlier this month, an appellate court in Virginia issued a written opinion in a product liability case that ended up reversing a jury’s verdict in favor of the plaintiff. In the case, Holiday Motor Corp. v. Walters, the court set aside the jury’s verdict because the car manufacturer did not have a duty to customers to manufacture a soft-top convertible that could safely withstand a rollover crash.

The Facts of the Case

Walters was the owner of a 1995 Mazda Miata soft-top convertible. Back in 2006, Walters was driving the Miata on a two-lane road with the soft-top in the closed position when she saw a large object fall off the back of a pick-up truck. To avoid colliding with the large object, she veered to the left across the opposite lane of traffic and up a grassy embankment on the side of the road. As the vehicle left the road, it rolled over and ended up leaning against a tree.

A passerby stopped to offer assistance. He testified at trial that the windshield was flat against the ground, but the rear end of the car was slightly elevated. Walters ended up suffering a serious cervical spine injury and sued Mazda based on a product liability theory. Specifically, Walter argued that Mazda violated the implied warranty of merchantability in that the design of the vehicle’s soft-top was unreasonably dangerous in failing to protect against rollover crashes.

June 1, 2016

Court Finds Post-Mortem Misconduct Falls under Medical Malpractice Umbrella and Must Comply with Applicable Procedural Requirements

by Lebowitz & Mzhen

Earlier this month, the Texas Supreme Court issued a written opinion broadly interpreting what constitutes a medical malpractice claim, holding that a hospital’s alleged fraud in obtaining consent to perform a private autopsy was subject to the additional procedural requirements of a medical malpractice action. In the case, Christus Health Gulf Coast v. Carswell, the court dismissed the plaintiffs’ claim because it was filed after the applicable two-year statute of limitations for medical malpractice lawsuits.

The Facts of the Case

The Carswells alleged that the defendant nursing home was negligent in the care it provided to their loved one, which ultimately led to his untimely death in 2004. These claims were filed about a year after the death of their loved one, in compliance with the state’s medical malpractice statute.

In addition, the family claimed that the nursing facility fraudulently obtained the family’s consent to conduct a private autopsy so that the facility could determine their loved one’s cause of death. However, these claims were only raised in the family’s third amended complaint, which was filed nearly three years after the death of their loved one.

April 1, 2016

Personal Injury Cases Based on Environmental Contamination

by Lebowitz & Mzhen

When a company operates a factory or other operation for a long period of time in the same area, unanticipated consequences can arise from the pollutants expelled from the operation. However, under state and federal laws, companies that operate factories or other facilities in an area have a duty to the residents living in the vicinity to keep harmful environmental toxins out of the water, soil, and air supplies. When people are harmed due to a company’s activity in their area, they may be entitled to monetary compensation for the harms they have suffered. These cases are often referred to as “toxic tort” cases.

Establishing liability in a toxic tort case requires the plaintiff to establish a number of factors. Often, one of the more contested factors is causation, which addresses whether the defendant’s actions in polluting the area were the cause of the plaintiff’s injuries. This often requires the testimony of scientific and medical experts.

Recent Case Against Shell Reversed on Appeal in Favor of Plaintiffs

In a recent case in front of a New Mexico appellate court, the court determined that the plaintiffs’ causation evidence that was excluded at trial should not have been excluded, and it reversed the lower court’s decision. As a result, the plaintiff will be given the opportunity to proceed with their case.

March 8, 2016

Plaintiff’s Case Against University Dismissed Based on Improper Venue

by Lebowitz & Mzhen

Earlier this month, a Mississippi appellate court dismissed a negligence action against an Alabama university, based on the fact that the case was filed in an inappropriate jurisdiction, and the court did not have the authority to transfer the case to a more appropriate court. In the case, Ramsey v. Auburn University, the plaintiff was a college student who was injured while working out in preparation to join the University’s football team.

The Facts of the Case

The plaintiff was a high school student when he applied to attend Auburn University to play football. He was accepted and offered a scholarship. After his acceptance, the coaching staff at the University sent the plaintiff a workout plan in order to get him into shape for the upcoming season. The next year, the plaintiff moved out to Alabama to attend Auburn University.

During orientation, the plaintiff’s father told the coaching staff that his son was prone to back injuries, and not to make him do “power cleans,” a very specific type of workout. However, during his training, the coaching staff recommended that the plaintiff do “power cleans” as part of his regimen. The plaintiff complied. That year, the plaintiff experienced lingering back pain. Eventually, the condition worsened, and he was unable to play football for the University.

June 15, 2015

Plaintiff Loses Case When Judge Keeps Out Police Officer’s Opinion of Who Caused Accident

by Lebowitz & Mzhen

Earlier this month, the Supreme Court of Appeals in West Virginia denied a plaintiff’s appeal in a car accident case that requested a new trial based on the lower court’s failure to allow the plaintiff to submit the responding police officer’s opinion as to which party caused the accident into evidence. In the case, Browning v. Hickman, the court had to consider two alleged errors made below and determine if either was sufficient to grant a new trial to the plaintiff.

The Facts of the Case

The case arose when the two parties were involved in an accident at an intersection. The defendant was traveling straight through the intersection and the plaintiff was making a left turn in front of the defendant when the accident occurred. Both parties claimed to have had the right of way. The plaintiff said he had a green arrow at the time, and the defendant claimed he had a green light.

A witness to the accident called 911, explaining that the plaintiff pulled out in front of the defendant’s car. Police arrived at the scene and, after a brief initial investigation concluded that it was the defendant who failed to yield to the plaintiff. However, that officer later told the attorneys that he wasn’t actually aware of whether the plaintiff did, in fact, have a green arrow.

December 1, 2014

Change of Venue Ordered in Medical Malpractice Case; Impartial Jury Concerns Cited

by Lebowitz & Mzhen

Earlier this year, we posted about a Maryland physician who was accused of molesting one of his patients. In a recent development in that case, the presiding judge determined that the case should be moved out of Allegany County—where it was originally filed—and moved to another forum in order to preserve the defendant doctor’s right to an impartial jury.

As it turns out, the defendant doctor is not only facing serious charges that may carry with them inherent bias, but he also has a previous conviction for a gun-point rape from Florida. Notwithstanding this conviction, he was somehow able to obtain a medical license in Maryland.

The judge cited the nature of the charges, the publicity of the case in Allegany County, and the publicity of the defendant doctor’s past criminal record as reasons to move the case outside the county. It is not yet clear which county will hear the case.