Relevant Personal Injury Case Law

Medical Malpractice Case Dismissed for Failure to Comply with Medical Expert Requirements

February 15, 2016 | Lebowitz & Mzhen

Earlier this month, a state supreme court issued an opinion in a medical malpractice case, preventing a plaintiff’s case from moving forward based on the plaintiff’s failure to comply with the state’s medical expert requirement in medical malpractice lawsuits. In the case, Easterling v. Kendall, the court did not allow or consider the plaintiff’s medical expert’s testimony because it was not properly disclosed during pre-trial discovery.

The Facts of the Case

The plaintiff was a young girl who suffered a fall at a local YMCA. When emergency personnel arrived, she was vomiting, had numbness in her left arm, and suffered from a severe headache. She was taken to the hospital, where the defendant doctor determined that the girl had hit her head and that she had suffered a concussion. He provided her with anti-nausea medication and sent her home.

The next day, the girl was re-admitted to the hospital. She complained of a severe headache and uncontrollable twitching. The radiologist on duty performed an MRI and discovered that the girl had actually suffered from a dissection of the right internal carotid artery, rather than a concussion. The attending physician determined that the girl had suffered a stroke in the past six hours. She was transferred to a more specialized hospital, where she remained in the hospital for almost a month. The girl, through her parents, sued the treating physician, arguing that had the physician properly diagnosed the girl with a dissection of the right internal carotid artery in the first place, she would not have suffered the permanent neurological damage she did.

Court Upholds “Release of Liability” Form in Whitewater Rafting Accident

January 18, 2016 | Lebowitz & Mzhen

Earlier this month, the Tenth Circuit Court of Appeals decided a case involving a wrongful death claim brought against a whitewater rafting tour company, alleging that the company’s negligence resulted in the death of the individual. Ultimately, however, the court affirmed the lower court’s dismissal of the claims based on a valid “release of liability” form signed by the deceased prior to embarking.

Espinoza v. Arkansas Valley Adventures: The Facts of the Case

The deceased contracted with the defendant tour guide company to take her and a group of family members on a whitewater rafting excursion down the Arkansas River in Colorado. The trip began as most do, with the proper preparation and planning. However, when the rafters approached a notorious rapid known as “Seidel’s Suck Hole,” the raft capsized.

Everyone aboard the raft was thrown into the water. Shortly afterward, everyone on the trip was retrieved by staff members of the defendant except the deceased. Tragically, she drowned before anyone could get to her. Her son brought a wrongful death action against the rafting company, claiming negligence per se and fraud.

Court Holds Hospital Slip-and-Fall Accident Does Not Trigger Medical Malpractice Requirements

January 4, 2016 | Lebowitz & Mzhen

Earlier last month, one state supreme court handed down an opinion distinguishing accidents that occur at a hospital but do not involve a breach of a professional medical duty from actions brought under a theory of medical malpractice. In the case, Galvan v. Memorial Hermann Hospital System, the plaintiff was a woman who was injured when she slipped and fell while visiting a loved one in the defendant’s hospital.

According to the court’s written opinion, the plaintiff was walking from the hospital’s pharmacy to her loved one’s room when she slipped and fell after stepping in a puddle of water that had formed outside the door to a restroom. The plaintiff filed suit against the hospital under a premises liability theory.

The Pre-Trial Motion for Summary Judgment

The hospital claimed that, since the injury occurred at a hospital, the heightened requirements of a medical malpractice lawsuit applied. Specifically, the plaintiff in this case did not submit an expert’s affidavit supporting her position. Thus, in a pre-trial motion, the hospital asked the court to dismiss the lawsuit because the plaintiff failed to comply with a necessary procedural requirement that applies to all medical malpractice lawsuits.

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.

Doctrine of “Intervening Cause” Used to Excuse Truck Driver from Liability in Multi-Truck Accident

October 19, 2015 | Lebowitz & Mzhen

Earlier this year, the Eighth Circuit Court of Appeals decided a case that excused two semi-truck drivers from liability because the negligence of a third truck driver was deemed to be an intervening cause of the injuries complained of by the plaintiffs. In the case of Baumann v. Zhukov, the plaintiff was a personal representative appointed to represent the interests of an entire family who died as a result of a multi-vehicle accident.

According to the court’s written opinion, the accident took place back in September 2012. The facts of the case are a bit confusing but illustrate the “intervening cause” doctrine nicely.

The Facts of the Case

Zhkov was traveling in his truck on the highway when he experienced an equipment malfunction, and his truck would no longer run. He pulled over to the side of the road and waited for assistance. However, before assistance could arrive, Johnson approached in his semi-truck and slammed into Zhukov’s parked truck. Evidence adduced at trial suggested that the safety cones placed on the road to warn passing motorists of Zhukov’s truck were not properly placed.

State Supreme Court Refuses to Hold City Liable in Slip-and-Fall Case on City Property

October 14, 2015 | Lebowitz & Mzhen

Earlier this month, the Idaho Supreme Court decided a case brought by a man who was injured when he slipped and fell while attending a Pop Warner football game in Plummer, Idaho. In the case, Hayes v. Plummer, the plaintiff sued the city who owned the park where the injury occurred, but he was prevented from recovering damages because the court determined that the City of Plummer enjoyed sovereign immunity from this type of lawsuit.

The Facts of the Case

The plaintiff was attending his grandson’s Pop Warner football game back in September 2011 when he slipped on some uneven ground that was covered by a tuft of grass. The man did not pay any admission to get into the park nor to watch the game. The man sustained injuries and filed a premises liability lawsuit against the city, seeking monetary compensation.

As it turns out, back in 1976, the park was conveyed to the City from a local school district. Park of the agreement was that the school district would continue to pay for the utilities and make improvements on the land, as needed.

Family Brings Suit Against Department of Transportation in Failure-to-Maintain Case

September 15, 2015 | Lebowitz & Mzhen

Earlier this month, the Supreme Court of Mississippi decided a case that was brought by a family who was involved in a serious car accident that they attributed to the negligence of the Mississippi Department of Transportation (MDOT). In the case, Logan v. MDOT, the Supreme Court of Mississippi determined that the plaintiffs should have been able to submit an affidavit of a family member who talked to several MDOT employees after the accident and was told that they had received complaints of the dangerous condition earlier that day.

According to court documents, the family was driving over a bridge that had recently undergone some asphalt repair work. MDOT, the organization responsible for the repairs, placed several thick metal planks over the asphalt as it cured. However, according to the plaintiffs, some of the planks were laying on top of one another in a way that made them stick up, creating a danger to passing motorists.

Indeed, as the plaintiffs’ car traveled across the bridge and over the planks, it got caught and spun out, injuring several family members inside. The family filed suit against MDOT, claiming that its failure to maintain the road was negligent. The family also claimed that MDOT’s failure to warn passing motorists of the dangerous condition was negligent.

Summary Judgment Not Appropriate in Lawsuit Against City Alleging Dangerous Roadway

August 17, 2015 | Lebowitz & Mzhen

Earlier this month, the Supreme Court of California heard a case that was brought against the City of Los Angeles, alleging that the negligent design in the city’s roadway led to injuries and deaths that were preventable had proper care been taken in the road’s design. In the case of Cordova v. City of Los Angeles, the negligent driving of a third party caused the plaintiffs’ vehicle to crash into a magnolia tree that had been planted in the center median by the City of Los Angeles. The case proceeded not against the negligent driver whose actions led to the accident, but against the City itself for the allegedly dangerous condition.

According to the court’s opinion, the case arose after the driver of a Nissan Maxima was hit by another motorist and pushed off the road. As the car left the roadway and entered the median, it struck a large magnolia tree that was in the median. Four of the five people inside the car died as a result of the collision, and one was seriously injured. The parents of three of those inside the car brought a lawsuit against the City, alleging that the tree was dangerously close to the road.

At Trial and On Appeal

The issue at trial was whether the magnolia tree constituted a “dangerous condition” on public property. Both the trial court as well as the appellate court determined that the tree was not a dangerous condition because, among other things, it did not cause the accident. The appellate court noted that there was no allegation that the tree made an accident more likely by obstructing the view of motorists or anything along those lines. The courts both looked at what caused the accident, rather than the added danger that the tree may have presented.

Court Determines Lifeguard’s Failure to Save Drowning Child Wasn’t the “Cause” of the Boy’s Death

August 3, 2015 | Lebowitz & Mzhen

Earlier this month, the Michigan Supreme Court heard a case brought by a grieving mother against the lifeguard she claimed was responsible for her son’s death. In the case, Beals v. State of Michigan, the plaintiff’s 19-year-old son who suffered from severe learning disabilities drowned while at a state-run swimming pool designed for children with learning disabilities.

The evidence at trial showed that there were 24 others in the pool at the time of the boy’s death. The lifeguard, who was named as a defendant in the lawsuit, was on duty but didn’t see the young man become submerged. In fact, no one in the pool saw the woman’s son go under water. It wasn’t until minutes later that another swimmer who had goggles on saw the boy at the bottom of the pool. Swimmers yelled for the lifeguard, but he didn’t respond for another several minutes. When emergency personnel arrived, they pronounced the boy dead.

The boy’s mother filed suit against the State of Michigan, as the operator of the pool, as well as the lifeguard, as a state employee. The lifeguard asserted “sovereign immunity” as a defense and asked the court to dismiss the case against him.

Federal Appellate Court Discusses Presumption of Negligence in Rear-End Accident Cases

July 22, 2015 | Lebowitz & Mzhen

Earlier this month, the Eighth Circuit Court of Appeals decided a case that discussed the presumption of negligence that arises when one driver rear-ends another driver in the context of a personal injury suit. In the case of Lopez v. United States, Lopez, the plaintiff, sought monetary damages from the United States government after an accident that she was involved in with a postal employee.

According to the court’s opinion, Lopez was traveling as a passenger in a vehicle being operated by a friend. The lane in which they were traveling came to an end at the intersection that was quickly approaching. The driver of the vehicle switched lanes into the lane that was occupied by the postal truck. The truck rear-ended the vehicle that the plaintiff was inside and pushed it a short distance into the intersection. The airbags did not deploy, and the vehicle was able to be driven home by its owner.

A short time later, Lopez filed suit against the United States government, claiming that the postal employee was negligent in rear-ending the vehicle in which she was riding. Lopez pointed to a presumption under Missouri law that arises in rear-end accident cases and states that the driver who crashes into the rear of another driver is presumed to be at fault. However, the court failed to apply the doctrine and found in favor of the defendant.