Articles Posted in Premises Liability

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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Earlier this month, the Oregon Supreme Court issued an opinion determining that a city employee is not considered an “owner” of city property and thus, may be held liable for his negligent actions that result in another’s injury. In the case, Johnson v. Gibson, the court’s ruling will permit the plaintiff’s lawsuit to proceed against the city employee in his individual capacity.

sprinkler-926779_960_720The Facts of the Case

The plaintiff, who is legally blind, was injured while jogging in a city-owned park. She tripped and fell after stepping in a hole that had been dug to fix a broken sprinkler head. The plaintiff then filed a lawsuit against the individual employee responsible for digging the hole.

The case was filed in federal court, and in order to decide the case the federal court had to apply Oregon law. The federal court then asked the Oregon court to answer one specific question: was the defendant, a city employee, entitled to official immunity as an “owner” of the land?

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Earlier this month in California, an appellate court heard a case brought by a young man who was injured when he tripped and fell after being startled at a haunted attraction. The court ultimately decided that the plaintiff assumed the risk of such an injury by participating in an activity known to be inherently dangerous.

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In the case, Griffin v. The Haunted Hotel, Inc., the plaintiff visited the defendant’s haunted attraction with a group of friends. As they group was waiting in line, an announcement was made, warning those before they entered the attraction that, while no one was going to intentionally touch them, they would be chased, scared, and tormented by staff. There was a sign near the entrance warning, “Due to natural surroundings of the park, the ground may be uneven with some obstacles such as tree roots, rocks, etc. Be careful.”

The plaintiff and his friends made it through what they believed to be the entire attraction, and they were waiting in a “well-lit, even surface” when a man with a chainsaw jumped out and began pointing the saw at the plaintiff and his friends. The plaintiff, feeling that the attraction was over and that the man was singling him out, began to back up, away from the employee. The employee was persistent and would not leave the plaintiff alone, and the plaintiff eventually started to run away. As he was running, the plaintiff tripped and fell, injuring his wrist. The plaintiff sued the Haunted Hotel under a premises liability theory.

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Earlier this month, an appellate court in Vermont decided a case implicating the state’s recreational use statute. In the case, Symonds v. City of Pawtucket, the plaintiff was the mother of a young girl who was injured while she was playing on a playground on city property. The mother filed a premises liability lawsuit against the City, claiming that the City’s negligent maintenance of the property caused her daughter’s injuries.

swing-1255387The Facts of the Case

According to the court’s written opinion, the girl got a splinter while playing on a wooden jungle gym. The mother testified that the condition of the jungle gym was so poor that it “had deteriorated to the point where the wood was frayed, split, and slivered.” After her daughter’s injury, the plaintiff called the Parks and Recreation Department to file a complaint and let them know of her daughter’s injuries. A short time later, she filed a premises liability lawsuit.

At trial, the City asked that the court dismiss the case based on the state’s recreational use statute. A recreational use statute is a law that grants immunity to property owners who open their land up to the recreational uses of others, when others are injured on their land. There is an exception to the recreational use statute when there is willful or malicious conduct. In such cases, there may no longer be immunity, and liability may arise.

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Earlier this month, the Supreme Court of Texas decided a case that illuminated the intersection between two different areas of personal injury law. Ultimately, the court determined that a slip-and-fall accident that occurs at a hospital does not fall within the hospital’s provision of health care and therefore should not be held to the heightened requirements of a medical malpractice action.

slippery-when-wet-1549497In the case, Reddic v. East Texas Medical Center Regional Health Care System, the plaintiff was a hospital visitor who slipped on a floor mat a few feet after entering the hospital. The plaintiff suffered injuries as a result and sued the hospital under a premises liability theory.

The Case Goes to Trial

At trial, the defendant hospital petitioned the court to dismiss the lawsuit because the plaintiff failed to submit an expert report validating her claims, as is required in medical malpractice cases. The plaintiff’s position was that a slip-and-fall accident taking place in a hospital is not so related to the hospital’s business of providing health care as to mandate the heightened requirements.

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