Premises Liability

Maryland Court Allows Lead-Based Paint Lawsuit to Proceed on Circumstantial Evidence of Causation

April 15, 2016 | Lebowitz & Mzhen

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.

The 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.

Court Determines City Employee Not Personally Immune from Negligence Lawsuit

March 22, 2016 | Lebowitz & Mzhen

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.

The 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?

Court Holds Slip-and-Fall Plaintiff “Assumed the Risk” of Injury When Visiting Haunted Attraction

December 1, 2015 | Lebowitz & Mzhen

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.

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.

Court Dismisses Plaintiff’s Case Based on Recreational Use Statute

November 16, 2015 | Lebowitz & Mzhen

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.

The 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.

Court Opts Not to Apply Medical Malpractice Requirements in Hospital Slip-and-Fall Case

November 9, 2015 | Lebowitz & Mzhen

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.

In 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.

Federal Appellate Court Reverses Lower Court’s Evidentiary Ruling, Allowing Plaintiff’s Expert Witness’ Testimony

August 10, 2015 | Lebowitz & Mzhen

Earlier this month, the Eleventh Circuit Court of Appeals decided a case that deals with an evidentiary issue common in many personal injury lawsuits: the admissibility of expert testimony. In the case of Sorrels v. NCL (Bahamas), the plaintiff was a customer on one of NCL’s cruise ships. At some point during the cruise, the plaintiff slipped and fell on the deck of the ship and fractured her wrist. At the time, the deck was wet from a recent rainfall. She filed suit against the cruise line, alleging its negligence in maintaining the ship’s deck.

The Issues at Trial

In this slip-and-fall case, one of the critical issues was what the ship deck’s coefficient of friction (COF) was. COF is a scientific term experts use to describe how much force is necessary to move one surface over another. In this case, the relevant surface was the ship’s deck; the higher the COF, the less slippery the surface will be.

The plaintiff called an expert at trial to testify to the ship deck’s COF. The expert tested the ship’s deck, although it was 520 days after the slip-and-fall accident. The expert also was going to testify to what he believed that the “normal” COF for a ship deck on a commercial cruise line should be. Specifically, the expert had four conclusions:

Maryland Worker Electrocuted While at Work at Correctional Facility

May 25, 2015 | Lebowitz & Mzhen

Earlier this month in Westover, Maryland, a contractor who was working on an upgrade to the electrical system at Eastern Correctional Institution was killed when he was electrocuted in a tragic workplace accident. According to one local news report, the man was working with another sub-contractor as a part of GE Industrial Solutions when the accident occurred.

Evidently, the second-largest prison in Maryland required an upgrade to the electrical control system. However, during the upgrade, something went wrong and both sub-contractors were electrocuted. One man was shocked so badly that he died almost immediately. The other man involved received timely medical treatment and is expected to recover.

The exact cause of the accident is still under investigation by the Occupational Safety and Health Administration. A report is expected to be released shortly.

Barroom Brawl Leads to 400k Jury Verdict in Plaintiff’s Favor

February 2, 2015 | Lebowitz & Mzhen

Earlier this year, the Supreme Court of Rhode Island upheld a jury’s verdict in a premises liability case that stemmed from a bar fight that left one man seriously injured. According to court documents, the fight occurred back in February 2009.

Evidently, the plaintiff and another man were involved in two altercations on the same evening, the second of which rendered the plaintiff unconscious. He was admitted to the hospital with serious injuries and was kept there for two weeks. After he was released, he required another two-week stay at home before he was ready to return to work.

In 2010, the plaintiff filed a lawsuit against the bar owner, claiming that its negligence in responding to the first altercation resulted in the more serious second encounter that caused the plaintiff’s injuries. The plaintiff presented one eyewitness, a bartender, who testified that the other man was “known to have a black belt in karate and he’s known to get violent.” She also told the court that he was “belligerent, obnoxious, vulgar, antagonizing other patrons, and looking for a fight” on the night in question. Despite this, no one at the bar called police until after the second altercation.

Maryland Appellate Court Considers the Cap on Judgments Against Municipalities

January 16, 2015 | Lebowitz & Mzhen

Due to a law enacted in the 1980s, Maryland plaintiffs are limited in the amount they are able to recover from municipalities across the state. According to an article by the Washington Post, this has led one woman to challenge the law that kept her from retaining the $11+ million award she received after a Prince George’s County police officer killed her husband while he was having a beer outside in Langley Park.

The Facts of the Case

Evidently, the officer was off duty at the time and approached the woman’s husband because he was drinking in public. However, for some reason the confrontation escalated, and eventually the officer shot the man, killing him. The officer claimed that he was acting in self-defense, since the man was reaching for his gun. However, witnesses told a different story, explaining that the man never fought back and that the officer was the aggressor.

At Trial the Plaintiff Wins

At trial, the jury heard all the evidence and determined that the officer—as well as the County—was responsible for the wrongful death of the woman’s husband and returned a verdict in her favor for over $11 million.

Construction Accident Victim Settles with Employer for $5 Million

January 2, 2015 | Lebowitz & Mzhen

Earlier this month, a construction worker in New York who was injured on the job collected $5 million in compensation after accepting a settlement offered by his former employer and the property owner where the injury occurred.

According to one local news report, the accident occurred back in 2008 in Buffalo, New York, when an on-the-job fall caused the plaintiff to tear his rotator cuff and puncture his lung, and also gave him eight herniated discs. As a result of the fall, the plaintiff needed to undergo several follow-up corrective surgeries in order to get him as close to his previous condition as possible.

The plaintiff filed suit against both the general contractor that employed him, as well as the property owner where the fall occurred. However, at trial, the defendants asked the judge to dismiss the lawsuit, claiming, among other things, that the plaintiff’s injuries were not caused by the fall but were pre-existing at the time of the fall. They also argued that the plaintiff failed to take a safer available route while on the job.