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Earlier this month, an appellate court in Rhode Island issued an instructive opinion regarding that state’s recreational use statute and how the statute may be used by defendants to avoid liability in a premises liability case. The case is also instructive to potential premises liability plaintiffs, since it shows which facts must be pleaded and proven in order for the case to survive a summary judgment challenge by the defense.

Sunset on LakeRoy v. State:  The Facts of the Case

Roy was with some friends at a state-run park. The park had a medium-sized pond in which people routinely swam, despite there being signs that swimming was prohibited. In fact, on some days, the government agency in charge of the park would staff the pond with lifeguards and allow swimming. There were, however, a number of “no diving” signs placed around the pond. Generally, the prohibition on diving was enforced, but there was an old diving platform that was still left from previous years when diving was permitted.

On the day in question, Roy got out of his parked car, ran up to the edge of the pond, and quickly inspected it before diving in. Roy later testified that the pond looked deep enough and that if it hadn’t looked safe to dive in, he would not have done it. When Roy did dive into the pond, his head struck the bottom, and he was paralyzed as a result. He later filed a lawsuit against the state agency in charge of the park’s maintenance.

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Premises liability cases, like most other cases brought under the legal theory of negligence, require that the plaintiff establish the defendant owed them a duty of care. In many cases, this element is the easiest for the plaintiff to prove, but in others there may be substantial litigation over whether a duty of care exists. In a recent case in front of a state appellate court, the court had to decide if a church had a duty to its churchgoers in providing them some assistance in crossing a dangerous street to get from the church parking lot to the church itself.

Busy Street

In the case, Vasilenko v. Grace Family Church, the court ultimately determined that a duty did exist, requiring the church to take some precautions to ensure that churchgoers could safely cross the street.

The Facts of the Case

Grace Family Church is located on a busy five-lane road. The church has a small parking lot next to it that fills up quickly when busy church events are being held. To help accommodate the additional cars, the church contracted with a local business to use the business’ parking lot across the five-lane road.

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Earlier this month, the Michigan Supreme Court issued an interesting opinion illuminating the jurisdictional issues that can arise in personal injury cases. In the case, Hodge v. State Farm Mutual Automobile Insurance Company, the plaintiff was a woman who was injured when she was struck by a vehicle insured by State Farm.

GavelAfter the accident, the plaintiff filed a lawsuit in a district court. In Michigan, as in Indiana and many other states, the court system is broken down according to several factors, one of which is the “amount in controversy,” or the amount sought by the plaintiff. In this case, the plaintiff was seeking $25,000, which was the upper limit of a Michigan district court.

At trial, the plaintiff presented evidence of damages far in excess of the $25,000. State Farm attempted to prevent the plaintiff from presenting this evidence, arguing that it wasn’t proper because the limit she could recover was $25,000. The court denied the request and allowed all of the plaintiff’s evidence of injuries. After the trial, she was awarded roughly $85,000, and the court then reduced the recovery amount to the jurisdictional limit of $25,000.

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State, local, and federal governments, as well as related government agencies, enjoy a general blanket of immunity from personal injury lawsuits. This means that in many cases filed against a government agency or employee, the injured party will not be permitted to recover compensation for their injuries because the named defendant is immune from liability.

Road ConstructionHowever, government liability does have its limits. Importantly, immunity will only attach when the alleged act of negligence is a discretionary one. This means that if the government had a choice in how to conduct the actions in which it is alleged to have been negligent, immunity will attach. Ministerial acts, however, are not covered under the blanket protection of immunity, and governments may be held liable when an allegedly negligent action or inaction was mandated by some law, rule, or regulation. This is exactly what happened in a recent case in front of the Mississippi Supreme Court.

Mississippi Transportation Commission v. Adams:  The Facts

Adams was riding his motorcycle on a Mississippi highway that was maintained by the Mississippi Transportation Commission. As he was riding along, Adams accidentally entered into a construction zone. As he attempted to exit the zone safely, he struck an uneven part of the pavement and lost control, falling off the motorcycle. Tragically, two passing cars struck him in the wake of his fall, and he was pronounced dead at the scene.

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Earlier this month, a West Virginia court issued a written opinion in a premises liability case brought by a man who suffered a shoulder injury when he fell after leaning on what turned out to be a damaged handrail. The court in the case of Wheeling Park Commission v. Dattoli determined that the injured man’s case against the park was incomplete in that the man failed to submit any evidence regarding the duty the park had to maintain the handrail.

Wooden BridgeThe Facts of the Case

The plaintiff and his wife were visiting the park to attend a concert. Since there was no seating available when they arrived, they ended up standing near a fence that protected visitors from inadvertently falling down a nearby hill. The plaintiff, looking for a place to lean, quickly visually inspected a handrail on the fence and then placed his weight against it. As he did so, the rail snapped at both ends, causing the plaintiff to fall down the hill. As a result of the fall, the man suffered a rotator cuff injury requiring surgery and months of physical therapy.

The plaintiff and his wife filed a premises liability lawsuit against the park, arguing that the park’s management was negligent for failing to keep the park safe. Specifically, they argued that it was negligent to allow the handrail to decay to such an extent that the weight of a single person leaning up against it could cause the rail to break.

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Earlier this month, an appellate court in California issued a written opinion holding that a wrongful death lawsuit filed by the father of a young man killed while skateboarding was properly dismissed below because the young boy assumed the risk of the dangerous activity in which he was engaging when he suffered his fatal injury. In the case, Bertsch v. Mammoth Community Water District, the court’s decision will prevent the boy’s father from receiving compensation for the loss of his son.

SkateboarderThe Facts of the Case

The plaintiff and his two sons were staying at a friend’s condo in Mammoth County, California. The two boys were skateboarding around the neighborhood before meeting up with their father to go rock climbing. Along the way, the boys pushed their way up a hill so that they could enjoy the long and fast ride down. However, on the way down the hill, one of the boys’ boards hit a lip surrounding a manhole cover, and he was thrown from the board. He was not wearing a helmet. When he struck the ground, he hit his head, causing him to suffer a traumatic brain injury. He later died from the injuries he sustained.

The boys’ father filed a lawsuit against several parties, including the local government and the water company that installed the manhole cover, seeking compensation for the loss of his son. The father claimed that the manhole cover was dangerous and that it was negligent for the government to fail to fix the hazard.

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Earlier this month, the Nebraska Supreme Court issued an opinion in the case of Pittman v. Rivera, holding that a bar owner was not liable under a theory of negligence when one of the bar’s patrons struck another customer after being kicked out for being aggressive. The court based its decision on a lack of foreseeability at the time the bar’s management kicked out the at-fault patron.

Pouring a BeerPittman v. Rivera

Pittman was struck by Rivera’s vehicle after Rivera was kicked out of the defendant’s bar for being aggressive toward his girlfriend, an employee at the bar. Initially, Rivera left the bar without incident, but then he returned a few hours later and tried to get back into the bar. The bar’s bouncer didn’t allow Rivera back in, and Rivera got back into his car.

Rivera, upset that he was not allowed back in the bar, began driving his car in a fast and reckless manner around the bar, making U-turns and revving his engine loudly. While Rivera was engaging in this reckless behavior, Pittman was outside the bar talking with friends. Unfortunately, Pittman was struck by Rivera’s vehicle and suffered serious injuries as a result. Pittman then filed a negligence lawsuit against Rivera as well as the owners of the bar.

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Earlier this month, an appellate court in Delaware issued an opinion in a personal injury case brought by the family of a young girl who was struck by a car while she was about to board her school bus. The case presented the court with an interesting question:  whether the school bus’ insurance company could be responsible for the girl’s injuries when the bus driver was not at all involved in the physical collision, but he told the girl to board the bus moments before she was struck.

School BusState Farm Mutual Automobile Insurance Co. v. Buckley

The plaintiff was a young girl who was waiting at the bus stop on her way to school. The bus arrived, and the driver signaled for the girl to board the bus. However, as she was about to board, another car – the driver of which is not named in this lawsuit – struck the girl, causing her serious injuries. This case involves the claim made by the girl against the company that insured the school bus.

The defendant claimed that the insurance policy should not be triggered because there was no accident involving the school bus. On the other hand, the plaintiff argued that the young student was merely following the school bus driver’s instructions when she boarded, and this fits within the definition of an accident under state law.

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Medical malpractice and personal injury lawsuits go through several phases before the case is submitted to a jury at trial. Two of the most important pre-trial phases are the discovery phase and the summary judgment stage. The discovery phase is where the parties exchange relevant information to the case that the opposing party may not have or know to exist. Certain discovery, even of unfavorable information, is mandatory.

medical instrumentsThe summary judgment stage is where either party can ask the court to enter judgment on a case before the case is submitted to a jury. In order for a judge to determine whether summary judgment is appropriate, she looks at all the evidence and determines if either party is legally entitled to judgment in their favor. This is only the case when there are no “issues of material fact,” meaning that there are no legal issues that can be resolved in favor of the non-moving party that could result in that party’s victory.

Defendant’s Summary Judgment in Medical Malpractice Case Reversed on Appeal

In a recent case in front of the Indiana Supreme Court, the court corrected a lower court’s error in granting summary judgment to a defendant when it was not legally appropriate. In the case, Siner v. Kindred Hospital Limited Partnership, the plaintiffs were the surviving family members of a women who died a short time after being treated at the defendant hospital. The plaintiffs filed a medical malpractice lawsuit, claiming that the poor treatment at the defendant’s hospital resulted in the death of their loved one.

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A state appellate court in Maine recently handed down a decision that demonstrates the importance of meeting deadlines and other procedural requirements when making a personal injury or wrongful death claim, especially when the claim is against a state or municipality. The plaintiff in the case of Deschenes v. The City of Sanford was a man who claims that he was injured when he fell down a dangerous staircase at the Sanford City Hall. After his accident, the plaintiff filed a premises liability lawsuit against the city, seeking damages for his injuries. Although the plaintiff gave oral notice to the city regarding his fall and his request for compensation, he did not provide formal written notice of his claim until after the six-month deadline in Maine for providing such notice.

Alarm ClockThe City of Sanford Succeeds in Disposing of the Case

At the district court, the City of Sanford argued that the plaintiff did not properly follow the procedures to sue a government entity in the state of Maine, and that the claim must be dismissed. Specifically, the city argued that Maine’s sovereign immunity act required that cities and towns be notified of negligence claims against them within 180 days of an accident.

Although the plaintiff notified the city in person shortly after the accident, both the district court and the state supreme court ruled that such notice was not sufficient under the statute, and that the plaintiff’s claim must be dismissed. Based on the Maine Supreme Court’s ruling that affirmed the lower court order, the plaintiff will be unable to recover any damages as a result of the city’s alleged negligence that caused his injuries.

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