Norfolk-Portsmouth Personal Injury Lawyer - Property Owner's Liability (Slip & Fall)

Falling trees: The silent danger in storms

Jim Lewis — Fri, 20 Nov 2009 21:17:57 GMT

Last week’s nor’easter has reminded us of a silent danger – large trees at risk of falling down in a storm and injuring someone.

The risk of injury isn’t trivial – a 17-year-old Newport News boy was badly hurt when a tree more than six feet in diameter fell into his family’s trailer at Warwick Mobile Home Estates at 12095 Jefferson Ave. on Nov. 12.

My colleague Rick Shapiro has written recently about a number of other storm dangers, including drowning while driving, chainsaw safety and generator safety.

The Newport News teen told WAVY-TV that he was sitting on his living-room couch and watching TV – hoping school would be cancelled – when his life changed forever.

"All of a sudden the house started shaking. I thought it was, like, an earthquake," the boy told WAVY.

The tree cut the trailer in half and tore off the roof. It took a crew from Hampton Roads Crane & Rigging Co. – using a 60-ton crane – two hours to lift the tree and free the boy, whose legs were pinned to the floor.

The boy has been released from the hospital after surgery and x-rays. While he didn’t break any bones, the Daily Press reported, he did suffer some nerve damage in his back and legs.

In a case where a tree causes not only personal injury but property damages, the legal issues of responsibility often involve whether a business or homeowner was aware that the tree was in a weakened condition, or was actually a dead tree, as several examples. If the damages orginates from a condition on the business/homeowner property, and if the responsible person/entity knew or should have known of the danger, liability may attach under the law. Injury attorneys must explore these issues and all potential sources of insurance, such as homeowners, or property/liability insurance.

Proper care and maintenance can often prevent trees from falling down as the tree in Newport News did. Tips include: frequent and proper pruning, avoiding damage with lawn mowers and other yard equipment, and digging too close to the tree.

About the Editors: Shapiro, Cooper, Lewis & Appleton personal injury law firm (VA-NC law offices ) edits the injury law blogs Virginia Beach Injuryboard, Norfolk Injuryboard, and Northeast North Carolina Injuryboard as a pro bono service to consumers.

(MM)

Originally posted at InjuryBoard by Jim Lewis

$500,000.00 settlement in bar/nightclub case in Norfolk, Virginia

Emily Mapp Brannon — Fri, 16 Jan 2009 11:32:09 GMT

I recently settled a case against a bar/nightclub in Norfolk, Virginia for $500,000.00. Check out the full article here.

Originally posted at InjuryBoard by Emily Mapp Brannon

Liability of nightclub/bars for drunken patrons

Emily Mapp Brannon — Tue, 16 Sep 2008 15:48:59 GMT

As a busy Virginia personal injury attorney, I was recently pondering about a case I have against a Norfolk nightclub/bar, which resulted in serious injuries to a young client.

When I took the call I was initially reluctant to take the case because the bar had potential, but not clear liability for the injuries that a drunk patron inflicted on my client. I knew it was not fair because I have witnesses who say that the guy was very obviously intoxicated and harassing several people. That is the piece of information that made me take the case. Unfortunately for my client he suffered a very serious injury as a result of the bar’s negligence in not removing a drunken patron when they should have. There are several lessons to be learned by this case. First and most important, be careful when you go to your favorite watering hole. You don’t know how drunk the person next to you is and you might end up injured or worse. Second, if you see someone acting out of control, take the time to notify management or an employee so no one ends up hurt.

This is just one type of “premises liability” case that I handle. I enjoy finding new means of recovery for my injured clients. While many lawyers would have walked away from this case, I wanted to see that my client was compensated for his devastating injury. If you have been involved in any type of situation where you end up injured because of someone else’s negligence or actions give me a call. I am always willing to help injured people. We handle cases in VA, NC, SC, WV, D.C. and TN. We have clients from all of the Hampton Roads cities.

Originally posted at InjuryBoard by Emily Mapp Brannon

Amusement Parks and Lawsuits

John Cooper — Tue, 22 Jul 2008 14:11:22 GMT

As a parent and an injury lawyer, I am amazed and scared by the threats posed to the public at theme parks. On June 29th, 2008, a 17 year old boy climbed two six foot fences and strolled into a restricted area at a Six Flags in Georgia where he was decapitated ( his head was cut off ) by a roller coaster called Batman. The State Supervisory Body have now told the amusement park that as a result of the incident it must increase the size and number of warning signs near other popular roller coasters. In May, a girl’s feet were cut off during another ride, called Superman, again at a Six Flags. The family filed a negligence suit against the park.

Horror stories like these often bring up the question: Why isn’t anything being done to prevent these tragedies? The Consumer Product Safety Commission (CPSC) figures show that around 6,000 - 7,000 people are treated in emergency rooms by amusement park related incidents every year. The CPSC was created to shield the public from " unreasonable risks of injuries associated with consumer products", yet its power in this industry is limited. Amusement parks with a fixed site such as our local ,Kings Dominion (Hanover County, Virginia (VA) ), and Busch Gardens (Williamsburg, Virginia (VA) ) are granted an exemption from the CPSC, which leaves only parks that move ( like the circus), under the jurisdiction of the CPSC. This results in the injury toll being unreported.

What’s the point of having a commission that doesn’t work? This is a great example of red tape. The problem with federal agencies like the CPSC is that they are too cozy with the industries they regulate, so enforcement is limited. In this case, the big wigs at the heads of these Amusement Park companies are benefiting from not being under the rules the CPSC can place, but doesn’t, and thus lure more customers under false pretenses of safety.

Originally posted at InjuryBoard by John Cooper

Diving Injury Paraplegic Awarded 16 Million

John Cooper — Tue, 03 Jul 2007 16:08:24 GMT

An 18 year old young man from Kansas dove from the dock into a lake in 2005 and came out without being able to walk again. The water where he dove was less than 4 feet deep, but was not properly marked.

A jury in 2007 held the corporation that owned the lake responsible for this injury and awarded 20 millions dollars for the permanent, catastrophic injury to the young man. The jury did find the boy was 20% at fault in causing his own injury, and thereby reduced the verdict to 16 million. The result would not necessarily have been the same in a Virginia (VA) court. Because Virginia (VA) is one of only four states left in the country that keeps the old rule of contributory negligence, the boy might have received nothing in a Virginia (VA) court, if the jury felt that his fault was a proximate cause of his own injury. This rule is extremely unfair and at times leads to jury verdict of zero where there is only minor fault by an injured person with such a terrible injury from the accident. As a quadriplegic, the young man can only partially use his arms and will be in a wheel chair for the rest of his life. Clearly the Kansas jury felt that the substantial fault lay with the corporation that owned this lake and the company that was suppose to provide life guard services.

Spinal cord injuries resulting in paralysis are all too common in diving accidents. Anyone who is providing a recreational swimming and diving facility has to be aware of the need to mark the pool or the body of water, so that people know where it is safe to dive and where it isn't. The Kansas business must have had notice of the risk, yet failed to take reasonable steps to prevent the tragedy, or the jury would not have held them responsible for the tragic consequences to this young person.

For more information on this subject, please refer to our section on Property Owners' Liability.

Originally posted at InjuryBoard by John Cooper

How To Win A Slip And Fall Case In Virginia (VA)

John Cooper — Tue, 26 Jun 2007 09:13:49 GMT

A personal injury lawsuit in Virginia (VA) has two parts, liability and damages. Damages are the result of the bodily injury to the person who is hurt, such as a broken bone and the lost wages and medical expenses associated with any orthopaedic surgery and permanent disability. The liability side of the bodily injury case is showing that the defendant was at fault in causing the plaintiff's injury and that the plaintiff was free from fault.

To win a big slip and fall case in Virginia (VA), you typically need a clear injury that is so serious that it is really beyond any question. If you do not have a very serious injury, then it may not be practical to spend the time and money necessary to pursue a premises liability case, because the liability is always hotly contested in these cases in Virginia (VA).

Most of the fight in these cases is typically over the liability issue. Take as an example a man who slips on grease on a floor of a buffet restaurant. As a result of the grease, he indicates that he has had multiple knee surgeries. I have recently handled a case just like that that occurred in Chesapeake, Virginia (VA). The trick to winning that case is being able to show that the restaurant had a dangerous condition on its premises, namely the grease, and had notice of the same or should have realized it was there sufficiently far in advance of plaintiff's fall in order that they could have done something to prevent it. That mouthful of a last sentence is the tricky part. First, you have to prove that there actually was grease or something on the floor. Often, the client has no idea what it was other than that there was a slick area on the carpet. The restaurant may deny that there was even any grease or slipperiness at all, as occurred in my case earlier this year. What ended up winning on that issue was that luckily my client had a friend who was with him at the time of his injury who also observed the discolored slick area on the floor. Without this corroborating witness, we would have been stuck with my client's word against the manager of the store, who said she looked at the place indicated and there was nothing there.

Proving that there was actually something that caused him to fall is only the first step. We also need to have evidence of what it was, how it got there, and how long it was there. There is lots of bad Virginia (VA) case law that says that if the plaintiff cannot prove that the slippery condition was not just made 20 seconds before he fell by a fellow customer, then he cannot recover. The restaurant claimed that they had swept up in the area just 15 minutes before and there was not anything there at that time, so perhaps some other customer dropped something on the floor just before our client got hurt, and before the store could do anything about it. The best evidence in this situation is a party admission by some employee of the business establishment that the spill had been there for sufficient time for them to do something about it. We had some information that the store manager acknowledged that some other employees were supposed to clean up the area prior to our client getting hurt. In that case, the manager denied she ever said that. However, some evidence of that sort is critical to proving notice, which is that the restaurant had time to deal with the mess and failed to keep the area clean or do something about it once it became soiled. The only other way that you can prove notice in these slip and fall cases is if the nature of the danger is such that it had to have been there for a significant period of time. For example, in a grocery store case, if the banana peel that the person slipped on was already so blackened as to be inconsistent with having just landed on the floor. Likewise, your attorney may try to show a built up grease spot that had to be an accumulation over time.

As you can see, having sufficient facts to get past the judge to let them even give you the right to go before the jury is tricky in these cases in Virginia (VA). Even after you prove that the business owner or occupant was at fault, you still have to show that your client acted reasonably for his own safety and was not contributorily negligent. If the jury believes that the danger was so open and obvious that your client should have avoided it, you lose.

My law partners and I have successfully handled many premises liability cases in the past. Each poses its own unique challenges. It is much like the tough area of medical malpractice where you can have a client who is very hurt but is not able to make a good recovery because of the difficult burdens of proof put on the plaintiff in the Virginia (VA) court system. Many lawyers shy away from even handling these types of cases because of the challenges.

For more information on this subject, please refer to our section on Property Owners' Liability.

Originally posted at InjuryBoard by John Cooper

Premises Liability or Slip and Fall Cases Are Very Hard to Win in States Like Virginia

John Cooper — Wed, 21 Mar 2007 09:57:25 GMT

In order to successfully recover for injuries caused by the owner or operator of a premises, you have to show that the business was negligent in that they failed to use ordinary care to keep their premises safe and to warn of hidden dangers. However, in Virginia, you also have to show that you, the injured person, are free from fault in causing your own injury and that the danger was not so open and obvious that you should have seen and avoided it. These are a lot of burdens to overcome. When someone calls me about a slip and fall or premises liability case, my first question is always about the severity of the injuries. Unless there are broken bones and surgeries involved, or some other permanent, significant injury, I know that I will not be able to take the case. The reason is these cases are fought so hard by the insurance companies that the likelihood of having to litigate the case deep into the process toward jury trial is high. It is expected that we will have to spend at least $10,000.00 to $20,000.00 to pursue one of these cases as far as litigation expenses. This is not money for the attorney and his time, rather it is the amount we have to pay to experts to prove up the case. Thus, we need to have a severe injury to make a case economically feasible to pursue.

The next question in my mind when screening these cases is do we have any slip and fall injury proof that the business owner was negligent. It is not enough to show that there was a banana peel on the floor. We have to show that the business owner left the banana peel there or that the banana peel had been left there sufficiently long for the business owner to have known it and done something about it. Normally, the injured client has no idea how the banana peel got on the floor or how long it had been there. The only way they will typically know this is if some admission was made by an employee of the business. The only other way that an injured person can prove fault by the store would be if some customer comes up and tells the injured person or their family that they knew that the banana peel had been on the floor and had told the store about it sufficiently long ago for them to have done something about it. Such clear evidence is rare. However, unless we have some viable theory to go on that it was a danger that was known to the business or should have been known to the business, then we do not have much to go forward on. The problem is that a judge will thrown out a premises liability injury case given it is just as possible that the banana peel was dropped on the floor by another customer, rather than by the store, 10 seconds before my client got hurt.

Even if we have a serious injury and some plausible theory of negligence by the store owner, you still have the problematic doctrine of "open and obvious danger." The insurance company for the store will argue that a banana peel is so big and yellow as to be clear to anyone paying any attention for their own safety. They will be able to try to twist the facts to make it seem like the injured person should have avoided this danger or was blind for not having seen it.

As a result of the difficulties of these injury cases, many law firms won't even take slip and fall or premises liability cases. They know that they are going to be expensive, hard fought battles. Although I am aware of the difficulties, I am willing to take a case on under the right circumstances. Some of the types of these cases our firm has handled successfully in the past include:

1) A man who slipped on grease near the buffet at a restaurant;
2) A person who fell in beer on the floor in a check out lane of a grocery store;
3) A woman who slipped in water without a sign out at a business; and
4) A performer who was caused to fall because of wet leaves on a driveway of the facility where she was to play music.

However, I have to turn down many cases because of those problems, even though I would like to help a person hurt by somebody else's fault.

Originally posted at InjuryBoard by John Cooper

Ski Injuries Can Be Severe

John Cooper — Fri, 16 Mar 2007 12:40:46 GMT

Skiing is a fun winter-time sport that the whole family can participate in. However, skiing injuries can be permanently disabling. The use of helmets while skiing has greatly improved safety on the ski slopes. Skiers often collide with each other and fixed objects like trees. If you have a helmet on, you greatly increase your odds of avoiding a permanent, disabling brain injury or even death.

A case in the past few years against the Wintergreen Ski Resort in Virginia resulted in a multi-million dollar verdict. A girl ran into a snowmobile operated by the resort's staff. Unfortunately, the girl suffered severe brain injuries, which permanently disabled her for the rest of her life. The amount of the verdict surprised the insurance defense lawyers for Wintergreen.

Our firm successfully handled cases against ski resorts, including Wintergreen in Virginia. My law partner, Francis Hajek, had a case where a woman skier was hurt because of mistakes made in the lift operation by the youngsters hired by the Resort to run this important, and potentially very dangerous, equipment. Our client suffered severe knee injuries requiring surgery. We got a substantial verdict for her. One of the key issues was overcoming the defense of assumption of the risk. This doctrine holds that if a person voluntarily takes on a risky activity, they cannot complain if they get hurt from that adventure. In this case, the judge wisely decided that the risk she assumed at skiing was not the same as assuming the risk that Wintergreen would negligently run the lift causing her an injury. In fact, ski resorts often depend upon cheap foreign labor, but do not bother to give them sufficient training in the important equipment that they are asked to operate.

Some states such as Colorado have complete bans on any suit against a ski resort no matter how negligent they are. The State of Colorado does this to protect its skiing industry at all costs. Evidently, it does not matter to that state if consumers and tourists are hurt, as long as the money keeps rolling in.

Originally posted at InjuryBoard by John Cooper