Articles Posted in Personal Injury

A woman seriously injured when a train derailed in West Virginia will have to endure a second trial after a federal appeals court ruled the trial court erred on an essential legal question.

The U.S. Court of Appeals for the Fourth Circuit found no fault with the trial court in its determination that the train operators breached its duty of care to properly inspect the track where the derailment occurred. However, it was decided on appeal in Harris v. Norfolk Southern Railway Co. that the court did not properly consider whether that breach of duty proximately caused the derailment that led to plaintiff’s injuries.

This is a critical point because in any negligence case, one has to show:
–A duty of care exists;
–The duty was breached;
–The breach proximately caused plaintiff injury.
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The Colorado Supreme Court recently ruled a young women severely and permanently disabled in a drunk driving accident may proceed with her case (via her parents) against the hotel from which she and several friends were evicted around 3 a.m. after a night of partying – despite pleas from the group that they were drunk, in no shape to drive and temperatures outside were freezing.

The case of Westin Operator, LLC v. Groh underscores the special relationship that exists between innkeeper and guests. The court was careful to say this was not a mandate that hotels evicting guests have a responsibility to call a taxi or to ensure former guests safely get to their next destination. What they do have a responsibility to do is evict a guest in a reasonable manner, and that means not kicking someone out into a foreseeably dangerous circumstance, which could result either form guest’s personal condition or environment.

The court didn’t say the hotel was liable. Rather, the evidence is sufficient to overcome a defense motion for summary judgment because a reasonable jury could find in plaintiff’s favor. Thus, the case will proceed to trial.
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Florida’s 3rd District Court of Appeal ruled an employee who was sexually assaulted in an employer-provided dormitory is not required to bring her premises liability and negligence lawsuit before an arbitrator, as her employer had argued.

The arbitration agreement had been signed as part of her employment contract with the company, but the court ruled her injuries had not arisen as a result of or in the scope of plaintiff’s employment, and therefore, affirmed the trial court’s order denying a motion to dismiss on those grounds in Club Mediterranee v. Fitzpatrick.

This was a unique case in that usually, injury cases against employers by their workers are barred by the exclusive remedy provision of workers’ compensation law – even if an employer did act with negligence. However, that’s only applicable when the injury was work-related. This case was not, even though the injuries occurred on employer property.
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Waivers of liability can be powerful defenses in certain personal injury cases, particularly in Florida in the wake of the Florida Supreme Court decision in Sanislo v. Give Kids the World. That case essentially stated waivers don’t have to be written in very specific language in order to be enforced, so long as it’s clear to those signing the legal rights they are giving up.

That is going to make it tougher for plaintiffs in certain personal injury cases to prevail where liability waivers exist. Each case will need to be considered on its merits.
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In any car accident litigation, one of the primary issues is causation. That is, plaintiff has the burden of proving that injuries for which damages are sought were indeed caused by the crash.

In some cases, this is relatively straightforward, particularly in a serious crash, where one seeks immediate medical attention and the injuries sustained are well-documented and undisputed.

For pregnant women, damage to the unborn child as a result of the crash is unquestionably a compensable injury. However, proving the cause-and-effect relationship can be difficult, particularly if the pregnancy was considered high-risk prior to the crash.
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A federal law called the “Graves Amendment” was passed several years ago at the behest of the rental car industry, seeking to eliminate liability for the wrongdoing of customers who rented their vehicles. Prior to that, virtually all owners of vehicles could be held vicariously liable for damages resulting from negligent use of that vehicle.

While the Graves Amendment was intended to ease the burden on the rental car industry, it has been increasingly used by the trucking industry to attempt to limit liability by owners of tractors and trailers. Because of the way the industry is structured, the owner of a large truck is not necessarily the same as the owner of the trailer and is not necessarily the employer of the driver. In fact, a fragmented structure is the norm.

The good news is legislators have recognized the public must be protected in the event of a collision with a large truck. Laws have been written in such a way that courts’ interpretations of them have limited the reprieve – if any – trucking companies can receive under Graves.
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When injuries stem from an altercation fueled by barroom bravado or alcohol, it is possible the owner of the bar, restaurant or nightclub could be held liable for damages.

It depends on the underlying circumstances. Under Florida premises liability laws, establishments have a responsibility to keep their property reasonably safe from foreseeable danger. In places where alcohol is served, that means ensuring there is adequate security and protocol in place to respond when disturbances inevitably occur.

It was on this basis plaintiff in Bitgood v. Gordon Greene Post Number 27 of the Am. Legion was able to secure judgment against a bar where his injuries were inflicted by another patron. The case was recently weighed by the Rhode Island Supreme Court.
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Mild Traumatic Brain Injuries account for approximately 75 percent of all traumatic brain injuries in the U.S., according to a report from the Centers for Disease Control and Prevention.

However, the term “mild” is greatly misleading, as it refers to the severity of the initial physical impact that caused the injury. It does not indicate resulting consequences of the injury are not severe. Unfortunately, diagnosis is difficult because while damage to the brain is real, the person who suffered injury might not initially realize anything is wrong. Even when they seek treatment, it’s common a typical neuroimaging scan won’t show any evidence of injury. There are some newer technologies that can more effectively capture the damage, though those machines aren’t in use at all medical centers.

Still, one should always seek medical treatment anytime there has been a head injury resulting from a motor vehicle crash, even if there was no blood or it doesn’t seem the impact was hard enough to cause damage. The recent case of Christensen v. Alaska Sales & Service, Inc. reveals how deceiving mild traumatic brain injuries can be.
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The Eleventh Circuit Court of Appeals, the same circuit that oversees federal appeals in Florida, recently grappled with the question of whether homicide by firearm was in fact an “accident” covered under an employer auto insurance policy.

On the surface, it sounds absurd. However, it was a question with which the lower court struggled even after careful consideration. Additionally, there are wider implications in the decision rendered in Travelers Property Casualty Company of America vs. Moore et al. for off-the-clock workers involved in incidents while driving company vehicles.

In Florida, a person injured by an on-the-clock employee driving a company vehicle may seek compensation not only from the individual driver, but also the employer on the basis of the employer’s liability. (An injured person might also seek to hold a company directly liable for negligent hiring, training or supervision, but that is a separate discussion.) Vicarious liability is holding the owner/insurer of a vehicle responsible just by virtue of the fact the vehicle was involved – so long as the driver had permission to operate the vehicle.
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There is a perception problem that exists for victims of personal injury. Too often, they are accused of exaggerating, malingering, being greedy or blaming others for their own faults. What is less obvious is the fact that this widespread perception is not by mistake. It’s the result of more than two decades of a sophisticated public relations campaign launched by big business interests to convince the public the civil justice system is out-of-control, frivolous lawsuits are commonplace and judges are failing to keep these issues in check.

All of this is the subject of a new documentary, “Hot Coffee,” which also delves into the fact that these perceptions have manifested in the form of legislative actions on tort reform that limit access to and relief derived from the court system. For example, damage caps have been instituted as a way to “curb overinflated jury awards.” Insurance companies and other big businesses convinced the public that multi-million dollar payouts to those who had been severely injured resulted in higher prices for everyone. The truth of the matter is, tort reform doesn’t bring down costs. In fact, lawsuits are a minute part of what these huge companies spend annually.

Our Fort Myers injury attorneys also know that the issue of tort reform is generally a red herring. It distracts from the biggest issue, which is that big business interests, from auto insurance to pharmaceutical companies, will do everything in their power to limit their own liability, even if that means denying essential compensation to those who need it most.
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