Opening arguments had been slated to begin in the case of Page v. Moses Taylor Hospital, a medical malpractice action in suburban New York following the death of two unborn twin girls in utero after their mother suffered from pre-eclampsia. pregnancy1

This dangerous condition occurs usually 20 weeks into gestation, and is characterized by high blood pressure. Even a slightly high blood pressure can be an indication, and if left untreated, the condition can be fatal to both the unborn child and the mother. The only cure is immediate delivery of the baby. In this case, that cure came too late. According to court records, a seizure suffered by the mother caused the placenta to become detached from the womb. The girls were stillborn at nearly 34 weeks and the mother, then 29, was forced to undergo an emergency hysterectomy to stop the hemhorraging, meaning she can never have any more children.

Leading up to the trial date, the judge made a number of rulings that favored the plaintiff, including allowing an expert witness to testify about the pain experienced by the twin fetuses as they died in their mother’s womb. This was an essential element of the case that would have furthered her compensation for pain and suffering. The judge also ruled that despite protests from the defense, a preeclamptic stillbirth has a valid emotional effect on the mother. The defense had tried to argue in a motion in limine that any evidence of emotional distress should not be allowed to be presented to jurors.  Continue reading

A growing number of organizations are requiring a signature on liability waivers before allowing folks to participate. On one hand, these documents are supposed to help patrons stay informed of the possible risks. The problem is, people rarely read them – or read them thoroughly – and the details in the fine print are often the most critical.

Although these waivers – which are essentially contracts – are often upheld by courts, they can be successfully challenged on a number of grounds. One could argue the waiver didn’t fully outline the exact risks. One might also argue that the waiver was inherently unfair. It’s possible to say the language was unclear or ambiguous. One could also argue gross negligence.splash

While waivers of liability can insulate organizations from liability for acts of negligence – which is an absence of reasonable care – they cannot insulate from gross negligence. The latter occurs when there is failure to use even the slightest amount of care. It is when a person deliberately disregards someone else’s safety by an act or omission they knew or should have known was going to put someone in danger. This was the allegation in the recent case of Steinberg v. Sahara Sam’s, weighed by the New Jersey Supreme Court. Continue reading

A federal appeals court gave limited reprieve to a boat rental company defending itself in a wrongful death lawsuit stemming from a 2009 boating accident in which two couples died and one other couple survived with injuries. The question was whether the boat rental company owed a duty to warn its customers of potentially inclement weather that day and secondly whether it had a duty to warn about the weather exposure limitations of the vessel they rented. roughwater

In re: Aramark Sports, the company, in anticipation of being sued by the victims and their survivors, filed a petition in federal court under the Limitation of Liability Act, which allows boat owners in federal navigable waters to seek a ruling that either exonerates or limits their liability on the basis of the vessel’s capacity or value of the boat and freight. So if a claim demonstrates negligence, the burden then shifts to the owner to prove he or she had a lack of knowledge of unseaworthiness. If the owner meets this burden, damages are capped at the value of the vessel – after the collision (which, if it sinks, is zero). If the owner does not, the case can proceed with no limitations. Such cases would then proceed in a state court.

Estates of the two decedent couples responded with claims of wrongful death and negligence. The district court held a bench trial just on the issue of limitation – meaning the issues of gross negligence, damages and apportionment of fault would be heard later. The court ruled that negligence had at least in part caused the accident and that this negligence was within the knowledge of the boat owner, and therefore it would not exonerate the company from liability, nor would it grant its petition for limitation.  Continue reading

Every state varies in its requirements for success in slip-and-fall cases. watermelon1

Slip-and-fall lawsuits are a type of premises liability claim that stems from the assertion that a business failed to keep its customers safe by addressing hazardous conditions on the ground about which they knew or should have known and in failing to warn about that risk. A requirement is that the company had either actual or constructive knowledge of it. Actual knowledge could be created in one of two ways: The company created that particular hazard or else someone informed them of it. Constructive knowledge, meanwhile, holds that a company should have known about the floor hazard because it had existed for such a period of time that it was discoverable in the course of reasonable care or else it was part of the company’s mode of operation.

In Florida, F.S. 768.0755 sets for the the requirements specifically for premises liability claims stemming from transitory foreign substances in a business establishment. This is the statute that says plaintiffs have to prove either actual or constructive knowledge of the dangerous substance on the floor.  Continue reading

Most people when they hear the words “cycling accident” automatically think of a collision with a car. It’s true that a significant portion of serious bicycle accident injuries are the result of bike run-ins with motor vehicles. However, most bicycling accidents overall are solo crashes.bicycle9

In some cases, bicycle accidents – whether solo or involving motor vehicles – are the result of a defective bicycle. Often, these defects are some type of mechanical failure of one of the bike’s components.

Anytime a product is defective and that defect causes an injury or loss, all those engaged in the business of designing, manufacturing and supplying that product to the public for use can be held liable for that injury. That means an injured person can pursue action against the designer of the bike, the company that assembled it, the wholesaler, the distributor and the retailer.  Continue reading

A liposuction surgery went horribly wrong, according to the husband of the patient who died less than a week after undergoing the knife.surgeon

Now, the Idaho Supreme Court in Ballard v. Kerr has affirmed plaintiff’s nearly $4 million damage award, though the court did order a reassessment of attorney fees. This ruling came after defendant, Silk Touch, rose 21 issues upon appeal. Those included the sufficiency of evidence supporting the verdict, the fact the lower court allowed jurors to submit questions to witnesses and allegedly improper comments on evidence during trial. The court rejected all but the attorney fee issue.

Defendant in this case is a medical spa that performs cosmetic surgery procedures. Defendant doctors is a trained anesthesiologist. Initially, the spa only offered mildly invasive cosmetic procedures, such as Botox treatments, dermal fillers and laser hair removal. However, the company branched out and started offering liposuction and fat transfers beginning in 2007. (A fat transfer involves taking fatty tissue from one area of the body and transferring it elsewhere.)  Continue reading

When a person alleges negligence on behalf of a professional person who was acting in the scope of employment at the time of the purported wrongful act, it may be necessary for the plaintiff to secure expert witness testimony.

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In these cases, a finding of negligence necessitates plaintiffs prove the defendant deviated from reasonable industry standards. Mostly, we see this in medical malpractice cases, though it could apply in other situations too.

In the recent case of Bixenmann v. Dickinson Land Surveyors, Inc., the Nebraska Supreme Court was asked to decide whether the lower court erred in granting summary judgment to defendant land surveyors, who were alleged to have been negligent in placing stakes on a property over which plaintiff later tripped. The lower court had ruled plaintiff hadn’t proven his case because defendant was acting as a professional – licensed and regulated by the state – and no expert witness testimony had been presented to assert he’d violated industry standards.  Continue reading

We trust that when we send our child to school, the teachers, administrators, coaches and other staff are going to do all they can to ensure the safety of our youth. In fact, they have a legal duty to do so. schoolbuswithchild

When that does not happen, it may be possible to hold the school district liable for damages.

Such was the case in Smith v. Leake County School District, a matter recently before the Mississippi Supreme Court. While the lower courts had granted the school district governmental immunity after finding the protection of a bullied student was a discretionary function, the state high court reversed, finding it is actually a ministerial one.  Continue reading

The man at the helm in the deadliest hot air balloon crash in U.S. history reportedly had at least four drunk driving convictions and had reportedly done two stints in prison, according to public records. hotairballoon6

Whether those facts had anything to do with the horrific crash remains under investigation.

Texas authorities and federal regulators with the National Transportation Safety Board (NTSB) report all 16 people aboard were killed, including the pilot, Alfred  Nichols. It appears the balloon struck a live power line, caught fire and burst into flames. Continue reading

Even though a utility company placed its poles in a position that failed to abide U.S. Federal Highway Administration “Clear Zone” stipulations, and even though this failure was noted by the local government with which it contracted, the Ohio Supreme Court has declined to hold the company responsible for an injury that occurred when an ejected motorcyclist struck one of those poles.utilitypole

In the case of Link v. FirstEnergy Corp., plaintiff sustained serious injuries when, as he was riding along a roadway, he was hit by a deer, ejected from his motorcycle and tossed into a utility pole near the road. He sued the utility company after finding evidence the utility poles were placed very close to the road, in a position that did not follow federal clear zone standards.

When the case went to trial, jurors found the company was liable for the motorcycle accident injuries and imposed damages of almost $370,000 for plaintiff and his wife for serious leg and pelvic injuries. The damage award included damages for medical bills, pain and suffering, lost wages and loss of consortium.  Continue reading