Henkel v. Norman: Adequate Warnings in Premises Liability Cases

In Henkel v. Norman, an appeal from the Supreme Court of Texas, a mail carrier was injured after he fell on ice one January day. According to court records, plaintiff was delivering mail on a day that was colder than normal. The National Weather Service had issued a hard freeze warning through the weekend.

icewalk.jpgThe plaintiff walked on the sidewalk in front of some homes and walk on the lawns of other homes when delivering mail. When his accident occurred, he was walking through defendant's lawn. Defendant was standing at the door when plaintiff arrived so she took the mail from him. When he turned around to leave, defendant said "don't slip." Despite her warning, plaintiff slipped and fell on the ice.

Plaintiff denied having seen any ice on the defendant's lawn prior to his fall. He sued defendant on claims that homeowners were aware of the ice accumulation on their property and did nothing to remove it or warn people of the danger of the ice.

Defendant filed a motion for summary judgment and trial judge dismissed the plaintiff's case. The judge ruled that there was no dispute of material fact at issue in this case and that the defendant had explicitly and in no uncertain terms warned the plaintiff to be careful about the ice right before he fell.

As your Boston personal injury lawyer can explain, a motion for summary judgment is a motion to dismiss a claim, or the entire case. The moving party (normally the defendant) asserts that there is no genuine dispute as to material facts. Essentially, they are saying that if you take all of the facts in the best light of the non-moving party, the non-moving party (normally the plaintiff) still cannot win the case. In the Commonwealth of Massachusetts, a motion for summary judgment is contained in Rule 56 of the Rules of Civil Procedure.

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Lindner v. Union Pacific Railroad Co.: Diversity Jurisdiction in Federal Personal Injury Lawsuits

Lindner v. Union Pacific Railroad Co., a case from the U.S. Court of Appeals for the Seventh Circuit, involved a couple who were driving under a railroad bridge when a train derailed above them. The train derailment caused the bridge to collapse and land on the couple's vehicle. Both occupants of the car, husband and wife, were killed in the tragic accident.

train.jpgThe decedents' son filed a wrongful death action against the railroad alleging that the accident was due to negligence. As your Boston personal injury attorney can explain, a wrongful death action is a type of negligence case typically filed by one or more of the surviving heirs of the decedent in the name of the estate.

This case was filed in federal court. A personal injury can be filed in federal court if it implicates a "federal question" or there is diversity of citizenship and the amount in controversy (claim) is more than $75,000. In this context, diversity of citizenship means that the plaintiff(s) and defendant (s) reside/operate in different states. Here, the plaintiffs were from Illinois and the railroad had its headquarters in Delaware. Many companies have their headquarters in Delaware, due to the state's laws being favorable to corporations.


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Vesely v. Armslist LLC: Wrongful Death Actions and Sales of Guns Over the Web

Our Boston wrongful death lawyers understand that in some cases, proving a relationship between a plaintiff and third party may require significant litigation.

UF_charges_DC.jpgVesely v. Armslist LLC, a case heard in the United States Court of Appeals for the Seventh Circuit, involved a woman killed by a man she met on an internet dating website. The man attempted to pursue a romantic relationship with the decedent, but she declined his advances.

After being rejected by the victim, the man purchased a .40 caliber handgun from a man in Seattle via an online classifieds page created to facilitate the purchase and sale of weapons. The website featured several disclaimers that stated owners of the site are in no way involved in any transactions between parties and that they in no way guarantee the legality of any transaction conducted via the website.

According to the website, any person who engages in a transaction is responsible for following all state and federal laws pertaining to the sale of guns and ammunition, and if a party has any questions, they should contact the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) directly.

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Gregory v. Cott: On Assumption of Risk in Personal Injury Cases

Your Boston personal injury lawyer understands that assumption of risk is a commonly asserted defense to negligence actions.

elderly-cane.jpgGregory v. Cott, an appeal argued before the California Court of Appeals, involved a healthcare worker who was injured by an Alzheimer's patient in her care.

The husband of an 85-year-old woman who suffered from the advanced stages of Alzheimer's disease hired an home healthcare agency to provide care for his wife. The plaintiff was assigned to treat the patient in her home. The plaintiff had worked with patients suffering from the disease in the past and had been trained in caring for people with Alzheimer's disease.

According to the record, the plaintiff was aware that late stage patients are prone to violent physical outbreaks. She knew that patients were prone to biting, kicking, and scratching those around them. Her responsibilities including bathing the patient, transporting her, and she was also to help perform light housekeeping. The plaintiff was washing dishes on this day and was cleaning a large kitchen knife. Her patient hit her from behind and reached into the sink.

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Hill v. United States: On FTCA Personal Injury Lawsuits

Hill v. United States, a case from the U.S. Court of Appeals for the Seventh Circuit, involved a plaintiff who was serving a five-year sentence in prison when another inmate attacked him. He was hit with a metal object and lost vision in one eye. Eventually, the eye had to be removed by doctors. The plaintiff filed a lawsuit against the United States Bureau of Prisons (BOP). The lawsuit was filed pro se.

hospital-bed-2-65899-m.jpgAs your Boston personal injury lawyers know in rare cases a person will choose to represent himself or herself in court. When this happens, the unrepresented party is known as a pro se litigant.

In Hill, the basis for the lawsuit was that the BOP was negligent by allowing the prison to become overcrowded and by failing to safeguard the prisoners in the overcrowded environment.

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Massachusetts Hot Air Balloon Crashes Power Lines, Bursts Into Flames

According to a recent article from CBS Boston, a hot air balloon crashed into power lines in Clinton, Massachusetts. Witnesses saw the hot air balloon flying extremely low over their neighborhood when it flew into power lines and caught fire. There were five or six passengers in the balloon who authorities said suffered burns ranging from minor to severe.

hot-air-balloon-serie-623175-m.jpgMany of the witnesses thought the passengers were all dead when the balloon crashed. Fortunately, the accident was not fatal. The cause of the accident is unknown, as is the reason the balloon was attempting to land in the town. Local authorities and the Federal Aviation Administration (FFA) are investigating the cause of this balloon crash.

The National Weather Service stated winds were fairly mild and there were no substantial weather events at the time of the crash. Around 600 people were left without power after the accident due to the power lines catching on fire. The power company was able to restore service within a few hours.

As your Boston personal injury lawyer understands, injuries resulting from recreational activities can often lead to complex litigation. It is likely the passengers were required to sign some type of waiver before boarding the balloon. However, Massachusetts courts are often willing to void liability waivers, depending on the language of the contract and the facts of the situation.

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Shapria, M.D. et al. v. Christiana Care Health Services, Inc., et al.: On Informed Consent in Medical Malpractice Cases

Shapria, M.D. et al. v. Christiana Care Health Services, Inc., et al. was a medical malpractice case argued before the Delaware Supreme Court. The plaintiff fell off a ladder and injured multiple ribs and suffered other injuries from the accident.

673854_doctor_patient_relationship.jpgAs your Boston medical malpractice attorney can explain, many cases deal with the issue of informed consent.

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Donahue v. Ledgends, Inc.: Release Forms in Personal Injury Cases

In Donahue v. Ledgends, Inc., an appeal argued in the Supreme Court of Alaska, a woman broke her tibia during a class at a rock climbing gym. According to court records, she fell about four feet from a bouldering wall and broke her leg.

blind-climber-865934-m.jpgThe gym required her to read a warning and sign a waiver before taking the class. The waiver purported to release the gym from liability for any injuries suffered by participants in the climbing class. The defendant moved to dismiss the case on summary judgment, claiming the signed release barred them from any liability.

Our Boston personal injury lawyers understand that many clients sign long and complex waivers without being given a real opportunity to read or fully understand what they were being asked to sign.

The trial court ruled the waiver signed by the plaintiff contained all of the statutorily required language and dismissed her claims against the defendant. The judge also ruled the Uniform Consumer Protection Action violation she had asserted did not apply to personal injury cases.


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McCormick v. Chippewa: The Personal Injury Settlement Offer as a Contract

In McCormick v. Chippewa, Inc., the plaintiff was working on an Alaskan commercial fishing boat when he injured his back pushing a net reel. He was given an over-the-counter pain medicine as the sole treatment for his injuries. Later that same evening, he went to bed, and, due to rough seas, he fell out his bed and hit the floor. When he hit the floor, he hit his head and suffered further injury to his back, according to court records.

fisher-boat-1111108-m.jpgThe following day, the plaintiff stated he was dizzy from the fall and in more back pain than he had been the day before. He was eventually treated for his injuries at a medical facility in Anchorage.

He filed a personal injury lawsuit against the boat owner and captain, alleging negligence in the operation of the boat both in causing his injury and in failing to treat his injury properly after it occurred.

As your Boston personal injury attorney can explain, insurance companies will often present their version of what occurred in a way that seeks to limit the maximum they are required to pay under a liability policy.

In McCormick, the defendants had an insurance policy that had a $500,000 per occurrence policy limit. This means $500,000 is the maximum they will pay for any single accident. This policy also had what is known as a cannibalizing clause, which means any money spent investigating the claim or defending the claim would be subtracted from the policy limit.

The plaintiff's attorney worked out what he apparently thought was a settlement for $1.5 million. The letter he sent released the defendant from liability in exchange for paying the policy limits on the accidents that occurred over three successive days. It was the plaintiff's contention that the initial accident involving the net reel was one accident, the falling out of bed injuring his head was another, and subsequent injury to his back was the third.

The defendant's insurance company sent a check for around $450,000. This was the total for what they claimed was one occurrence at the policy limit of $500,000 minus expenses.

The plaintiff's attorney rejected this check on two occasions and both parties request that the court enforce what they each respectively believed to be the terms of the settlement. The plaintiff demanded $1.5 million while the defendant demanded they accept the original check minus the additional money spent to enforce the settlement.

The plaintiff filed discovery requests in attempt to determine the defendant's attorney's state of mind when agreeing to the settlement. The defendant sought an order of protection from the court. The court ultimately denied the plaintiff's discovery request on grounds that the attorney's state of mind was not relevant to the case.

On appeal, the court found that the state of mind of the defendant's attorney was relevant and reversed and remanded the case so that the plaintiff could propound discovery from the defendant.

The appellate court reasoned that what the parties believed at the time the settlement agreement was reached was very relevant. In order to have a valid contract, there must be a meeting of the minds.

If you are injured in an accident in Boston, call the Law Offices of Jeffrey S. Glassman for a free and confidential appointment -- 1-888-367-2900.

Additional Resources:

McCormick v. Chippewa, July 30, 2014, U.S. Supreme Court of Alaska

More Blog Entries:

New England Boating Accident: Father and 2 Children Rescued, August 2 2012, Boston Personal Injury Lawyer Blog


Durban v. Waverly Sales Company: Assumption of Risk in Negligence Actions

Durban v. Waverly Sales Company, an appeal argued before the U.S. Court of Appeals for the Eighth Circuit, involved a woman who attended a horse auction with her husband. The arena was set up in such a way that there were bleachers erected around the show floor. The plaintiff and her husband were sitting in the bleachers on the northeast side. During the auction, she left her seat to go the restroom.

the-horse-1439653-m.jpgIn order to get to the restroom, the plaintiff had to walk down an alley created at the northeast end of the arena between the bleachers. This is the same alley that the horses were led down after they were sold. While returning from the restroom, the plaintiff tripped and fell to the ground. At this point, an employee opened a door overhead that caused a horse to become startled.

The startled horse trampled the plaintiff, and she was very seriously injured. The plaintiff sued the defendant for personal injury, claiming that the show presenter was negligent for arranging the seats in such a way that people had to walk down the same alley as the horses. Additionally, she alleged the worker's negligent opening of the door that startled the horses.

Our Boston personal injury lawyers know that companies often do whatever they can to get a case dismissed.

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Lee v. Smith & Wesson Corporation: Admissibility of Expert Testimony in a Personal Injury Case

Our Boston personal injury lawyers know rules of evidence can lead to complex litigation.

pistol-443691-m.jpgIn Lee v. Smith & Wesson Corporation, the plaintiff was injured while shooting target practice with his revolver manufactured by the defendant. The plaintiff fired two shots without incident and, on the third shot, was severely injured when the gun hit him in the eye.

According to the plaintiff's testimony, the cylinder that holds the bullets swung open after the shot was fired due a manufacturing defect and hit him in the safety glasses. The safety glasses broke, causing significant trauma and loss of vision to his right eye.

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Partenfelder v. Rohde: On Federal Preemption in Negligence Actions

Our Boston personal injury lawyers know such cases require a thorough understanding of both state and federal negligence law.

train.jpgIn Partenfelder v. Rhode, a case heard in the Wisconsin Supreme Court, a freight train hit a minivan. According to the record, the local police department sent a letter roughly two weeks before the fatal accident to a member of the rail police. The letter stated the town would be holding a Memorial Day parade, which might increase pedestrian traffic in the area along the railroad tracks.

The letter asked the rail police to notify all train conductors of the possibility of pedestrian and vehicle hazards on the tracks at a particular location. The letter did not request that trains operate at reduced speed. The officer did not get any response to his letter and sent another copy of the same letter the following week. The rail police officer who received the letter sent a memo to the train dispatcher, who generated a special bulletin telling train crews to sound the warning bell continuously and look out for crowds at a particular location.

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Three-Year-Old Girl Killed by Store Security Gate

Our Boston personal injury lawyers know storeowners who do not properly inspect and maintain their premises may subject themselves to a negligence lawsuit.

269548_emergency.jpgAccording to recent story from CBS, a security gate at a Philadelphia Italian ice store killed a three-year-old child. Authorities are reporting that an accordion-style metal gate that rolls down to protect the store from burglars came loose from the building structure. The 2000-pound gate, along with the metal frame constructed on steel beams, detached from the building and fell on the child.

This tragic accident occurred during a fundraising event hosted by two college fraternities. Witnesses say that dozens of people tried to lift the gate off the child. At one point there were 12 to 15 people on each side of the gate but it was too heavy for them to quickly lift. Eventually, with the help of 30 people, they were able to lift the gate off the young girl, but she was not moving at that point.

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Wilkinson v. East Cooper Community Hospital: On Tolling the Statute of Limitations

Our Boston personal injury lawyers know the statute of limitations is always a major concern in the timing of filing a negligence action.

healthcare-upclose-885334-m.jpgIn Wilkinson v. East Cooper Community Hospital, an appeal heard in the South Carolina Supreme Court, the plaintiff was admitted to the defendant hospital in 2008 to undergo reconstructive breast surgery.

Once the surgery was complete, the plaintiff began to experience medical complications, and she required additional surgical procedures. Just short of three years following the surgery, the plaintiff filed a Notice of Intent (NOI) to file a lawsuit, because the statute of limitations was about to run.

The state statute pertaining to the filing of a NOI required that, in a medical malpractice case, the NOI be filed with an expert declaration. In this case, the plaintiff did not file an expert declaration with the NOI but chose instead to state in the filing that she intended to name an expert at a later time.

A month after she had filed the NOI, the plaintiff filed an affidavit from a plastic surgeon who was to be her expert witness. This filing was just after the statute of limitations had run. Statute of limitations in a personal injury case is a law that governs how much time a plaintiff has following an injury to bring a lawsuit.

In Massachusetts, the statue of limitations on medical malpractice claims is three years following an injury, and in no case more than seven years after the conduct which caused the injury. The only exception to this rule is in a case when a doctor leaves a foreign instrument in the human body. For example, if there is a surgical tool or sponge left in the body, that statute of limitations may not apply. It is for this reason that hospitals now have a nurse or medical technician whose job is to keep count of all instruments and other medical equipment before, during, and after surgery. Every blood filled sponge is now counted before disposal to make sure that one is not left in a patient.

In Wilkinson, the defendant moved to dismiss under what is known as a 12(b)(6) motion for failure to state a claim for which relief can be granted. This type of motion generally must be filed at the first opportunity. This normally means that the defendant will file the motion in response to the complaint. If you do not file the motion at the first available opportunity, you are said to have waived your right to file this motion. Here, the plaintiff argued that, since the defendant participated in pre-trial mediation before filing the motion, the defendant had waived any rights to this type of dismissal. The trial court granted the defendant's motion and dismissed the case.

On appeal, the court reasoned that the plaintiff had properly filed a NOI that was sufficient to put the defendant on notice.

If you are injured in an accident in Boston, call the Law Offices of Jeffrey S. Glassman for a free and confidential appointment -- 1-888-367-2900.

Additional Resources:

Wilkinson v. East Cooper Community Hospital, July 23, 2014, South Carolina Supreme Court

http://law.justia.com/cases/south-carolina/supreme-court/2014/27423.html

More Blog Entries:

Massachusetts SJC Allows Medical Malpractice Claim to Proceed, May 21, 2014, Boston Personal Injury Attorney Blog

Fellowship of Christian Athletes v. Ironshore Specialty Ins.: On Defendant's Suing their Own Insurance Companies

Our Boston personal injury lawyers know insurance cases involving defendants with multiple insurance companies may result in additional litigation.

959017_swimming_pool_water.jpgIn Fellowship of Christian Athletes v. Ironshore Specialty Ins., a case heard in the U.S. Court of Appeals for the Eight Circuit, two boys attended a youth sports camp operated by the defendant. Neither of the boys could swim, and the parents indicated that they could not swim on the appropriate form.

One day during camp, there was a pool party for all campers. Once the pool party was over, the staff noticed the two boys were missing. Their bodies were eventually discovered lying next to each other on the bottom of the deep end of the pool. The medical examiner concluded that the cause of death for both children was drowning but the most shocking finding were that the times of death for the boys was determined to be at 10:42 p.m. and 10:44 p.m. respectively.

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