Articles Posted in Premises Liability

When a party files a personal injury case against a defendant, the defendant has the opportunity to argue one or more defenses in hopes of escaping liability. In some cases, the ultimate determination comes down to which witness is more believable. However, in other cases, the facts are not necessarily contested, and the parties argue whether a legal defense applies.

FiremenOne common defense in Maryland personal injury cases is “assumption of the risk.” The doctrine of assumption of the risk stands for the proposition that a person cannot seek to hold another party liable for injuries they sustained while engaging in an activity that they knew was risky. A recent case brought by a firefighter illustrates this principle.

The Facts of the Case

The plaintiff was a firefighter who was called to assist in the efforts to put out a wildfire that had gotten out of control. The firefighters set up a headquarters inside the center of an oval racetrack and set up camp outside the track. However, by the time the plaintiff arrived, all of the camp spots had been taken. She then sought permission to camp inside the track. She was given permission and spent the first night there without a problem.

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Carbon monoxide is a colorless and odorless gas that is emitted through chemical reactions that occur during the operation of certain machinery. For example, carbon monoxide is a byproduct that is emitted when running cars and trucks, gas ranges, furnaces, grills, stoves, and lanterns. Most homes and business contain at least one appliance that emits carbon monoxide.

Indoor PoolCarbon monoxide is toxic to humans, and if present in sufficient amounts, it can result in death. Carbon monoxide tends to build up in areas without sufficient ventilation. The side effects of carbon monoxide poisoning are headaches, dizziness, stomach aches, fatigue, weakness, and confusion. Often, those suffering from carbon monoxide poisoning feel as though they are intoxicated and want to go to sleep.

Carbon monoxide is responsible for more than 20,000 emergency room visits each year and an additional 400 deaths. The young and the elderly are most at risk for carbon monoxide poisoning, but all ages are at risk. While the gas is very dangerous, carbon monoxide detectors are very effective at detecting abnormally high levels of the gas in the air, and they can alert guests and residents that they need to evacuate when carbon monoxide levels get dangerously high. However, not all states require homes and businesses to install carbon monoxide detectors.

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Earlier this month, an appellate court in Georgia issued a written opinion in a premises liability case that was brought by a woman who slipped and fell on a “corn hole” game board as she was talking to a sales associate in a car dealership’s showroom. The court ultimately determined that because the evidence presented showed the plaintiff had successfully negotiated her way around the board several time before, and because it was open and obvious, the defendant was entitled to summary judgment.

Banana PeelThe Facts of the Case

The plaintiff went with a friend to the defendant’s car dealership to look at the selection of available pick-up trucks. Upon arrival, the plaintiff saw a sales associate in an office across the show room. She crossed the show room, passing a four-foot-long board that was part of a corn hole game. The plaintiff and her friend spoke to the associate, and then made their way out into the lot. A short time later the two came back into the show room and went back to the sales associate’s office, again making their way past the corn hole board.

The plaintiff and her friend had a brief conversation with the associate before leaving his office. On her way out of the associate’s office, he stopped her to ask her a question. She briefly responded and then continued her exit. However, as she did, she tripped and fell on the board, injuring her knee. The plaintiff then filed a premises liability lawsuit against the car dealership, claiming that it was negligent in the placement of the game board.

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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.

Water on FloorThe 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.”

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Earlier this month, the highest court in Illinois issued a written opinion in a premises liability case requiring the court to interpret a statute that on its face grants immunity to property owners who are negligent in the removal of snow or ice on their land. In the case, Murphy-Hylton v. Lieberman Management Services, the court determined that the defendant apartment complex was not entitled to immunity because the plaintiffs did not allege negligence in the removal of the condition but instead negligence in otherwise maintaining the property.

Snowy PathThe nuance in the court’s opinion is instructive to would-be personal injury plaintiffs in Maryland because the opinion shows how closely courts scrutinize legal arguments and how a dedicated advocate can greatly increase a plaintiff’s chance of success.

The Facts of the Case

The plaintiff lived in an apartment complex owned by the defendants in Carol Stream, Illinois. In February, 2011, a snow storm dropped over 20 inches of snow in Carol Stream. The defendant arranged for the snow and ice to be cleared from the premises, but 11 days after the storm, the plaintiff slipped and fell on a patch of ice behind her building on her way to the parking lot.

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Earlier this month, an elderly woman recovered just over $1.3 million after a jury found in her favor in a premises liability case involving a large grocery store chain. According to one industry news source reporting on the case, the accident took place back in 2012, when another customer inadvertently struck the woman with an electric grocery cart.

Grocery StoreEvidently, the elderly plaintiff was shopping at a Giant Eagle grocery store when she was hit by another patron in an electric cart, after the patron had lost control of the cart. The collision tossed the woman nearly four feet into a nearby shelf. The force of the collision seriously injured the woman’s back and neck. She filed a premises liability lawsuit against the grocery store chain.

During the trial, the woman’s attorney submitted evidence to the jury of 119 other accidents occurring at Giant Eagle stores across the country. This enabled the attorney to argue not only that the grocery store was negligent in failing to provide adequate instructions to the customers using the carts but also that it had prior knowledge of the potential dangers involved in allowing uninformed customers to use the carts.

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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.

Rock ClimberThe 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.

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Earlier this month, an appellate court in California issued an opinion in a case brought by the father of a boy who died after he sustained a traumatic brain injury when he fell off his skateboard after hitting a lip around a manhole cover. In the case, Bertsch v. Mammoth Community Water District, the court held that the doctrine of “assumption of the risk” prevented the boy’s father from successfully seeking compensation for his loss.

SkateboarderThe Facts of the Case

The plaintiff took his two boys on a trip to Mammoth County to enjoy a friend’s condo for a few days. While there, the plaintiff’s sons were out skateboarding around the neighborhood before they were going to meet back up and all go rock climbing. The boys were not performing any tricks, but they did push themselves up a hill so that they could enjoy the long, fast ride down to meet their dad.

Tragically, on the way down the hill, one of the boys’ skateboards hit a lip surrounding a manhole cover, causing the skateboard to come to a complete stop. The young boy flew off the board, striking his head on the pavement as he landed. He suffered a traumatic brain injury and shortly afterward passed away.

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Earlier this month, a West Virginia court issued a written opinion in a premises liability case that arose when the plaintiff was injured after the handrail he leaned against broke, causing the man to fall down a hill. The decision in the case, Wheeling Park Commission v. Dattoli, reversed a lower court’s judgment in favor of the plaintiff and held that the lower court should have granted the defendant’s motion for a directed verdict.

Wooden HandrailThe Facts of the Case

The Dattolis were attending an event at Wheeling Park. Due to the popularity of the event, there was no seating available, and the Dattolis opted to stand. Mr. Dattoli quickly inspected a nearby handrail before leaning up against it, but as he did, the handrail snapped. Mr. Dattoli fell past the rail and down a hill, injuring his shoulder as a result. He filed a negligence lawsuit against the park, claiming that the park was responsible for his injuries because it was the park’s duty to keep safe premises, including the handrail.

At trial, the Dattolis called the Director of Operations for the park, who testified that the fence was installed between 1970 and 1990, that there were no maintenance records for the fence, that the fence had a life expectancy, and that the park’s management was in a better place to ensure that the handrail was in good condition than was a guest. The Park called no witnesses but asked the court to enter a directed verdict in its favor, arguing that the Dattolis failed to show evidence that the Park was negligent.

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Earlier this month, the Maryland Court of Appeals issued a written decision in a case brought by a woman who claimed that she suffered exposure to lead while living in the defendant’s property over 20 years ago. Since the plaintiff moved out of the defendant’s property, it had been torn down. Moreover, there was no testing completed prior to the building’s demolition to determine if there was a presence of lead in the building. The main issue in the case was whether the plaintiff submitted sufficient evidence to survive the pre-trial motion for summary judgment filed by the defendant.

old-paint-brush-1061955_960_720The Evidence Submitted to the Court

The plaintiff acknowledged from the outset that there would be no direct evidence proving that the defendant’s property contained lead. Instead, the plaintiff proceeded with circumstantial evidence in the form of expert testimony. The plaintiff’s experts reviewed the plaintiff’s medical records, as well as a sworn statement from the plaintiff averring that she had not come into contact with alternative sources of lead, and came to the conclusion that it was “more likely than not” that the defendant’s property did contain lead and that living in that property was the cause of the plaintiff’s current lead poisoning.

The defendant also presented expert testimony to the court. The defense experts opined that there was no way to tell whether the defendant’s property contained lead, and even if it did, if such exposure was the cause of the plaintiff’s current condition. The defense argued that, in the absence of any direct evidence of causation, the case should be dismissed.

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