Injuryboard Commentary - Property Owner's Liability (Slip & Fall)

Improper Stacking Cases - Falling Items at a Big Box Retailer

John Cooper — Thu, 03 Dec 2009 13:48:58 GMT

The "big box mart" era is in full-swing in the United States and many of us find ourselves in one of these stores at least once a week. These are not standard grocery stores or local drug stores, but the Home Depots, the Targets, the Super K-Marts, and the quintessential Walmart. These stores offer us the chance for one-stop-shopping with low prices. We enter these stores ourselves and with our families and friends thinking only of shopping and finding the best deals of the day. We do not think that our innocent foray into the aisles of Walmart may land us in the hospital with a serious injury. While this sounds silly and seems unlikely, the truth is that thousands of people have been injured by falling merchandise in this country and the number keeps rising. The warehouse style storage of items for sale and the lack of help for accessing all that stuff on high shelves makes these stores, especially likely to have tumbling merchandise hitting folks on the head or shoulders while shopping.

Every week hundreds of claims are made by customers against large retailers for injuries they have sustained in a falling merchandise incident. For many of the people who are involved in an accident like this, the injuries may not be more severe than cuts and bruises; however, sadly, when children or the elderly are involved, falling merchandise can prove to be fatal. The problem with cases like this is that we as customers at these stores are not in control of our surroundings. Obviously, it is important that we take notice of signs or instructions in stores and that we are aware of what is going on around us. However, our safety is really placed in the hands of the store and its employees.

Often times, falling merchandise incidents occur because of improperly trained employees. These workers are not properly trained in the methods for safely stacking and storing merchandise or how to properly operate machinery. One incident in which a child was killed at Home Depot store involved a worker who was driving a forklift with countertops precariously balanced on it which then fell and caused the child to suffer severe head trauma from which she died the next day.

When a store invites customers into its facility, it has a duty to use ordinary care to keep the store reasonably safe and that means that all employees should be properly trained and all merchandise should be properly stored, stacked, and secure. This also means that the store has a duty to take reasonable steps in monitoring high stacked merchandise and if a customer moves or shifts something, an employee needs to inspect that it has not become dangerous. This is about accountability for store owners, managers, and their employees. This is a long-standing doctrine in the law that invitees (customers) are owed a duty of care and that if that duty is violated, it generally means that the business is liable for harms caused by its carelessness.

If you or a loved one are ever involved in a falling merchandise case, it is extremely important that you find witnesses immediately and that you yourself make a record of the incident. It is key to do this as close to the incident as possible when the details are still fresh in your mind. You want to be able to show that it was the negligence of the store that caused your injuries. While not all injuries are severe, it is important to seek treatment or at least to consult your physician after an accident like this, since some injuries may not be immediately apparent and only your doctor can advise you on what to watch out for.

While it is true that accidents do happen in stores and that they happen rather more frequently than we would like, at this time of the year, try not to let such worries dampen your shopping spirit. But watch out, as it is not just prices that are falling!

Originally posted at InjuryBoard by John Cooper

Winter Slip and Fall Safety Tips

Mark Bello — Tue, 01 Dec 2009 09:11:00 GMT

People, especially children, fall sometimes. Sometimes, they fall, get back up, and fall again. No big deal, right? We all lose our balance and fall, at one time or another; maybe we get a few bruises, cuts, or scrapes. However slips and falls can also be serious injury causing accidents, and should not be taken lightly. Many people have been seriously injured, even killed, in slip and fall accidents . Slip and fall accidents can cause pain, trauma, and financial stress and, yes, even death.

As winter is approaching, it is important for you and your family to be aware of some easy to remember slip and fall prevention tips. A few simple precautions can help reduce your chances of being injured from a slip and fall accident.

Wear proper foot gear – shoes or boots that provide traction on snow and ice.
Take your time and walk slowly; take small steps for stability
Avoid slippery surfaces as much as possible; never run on icy ground
Keep hands free for balance and use handrails whenever possible. If you slip, you will need your arms to restore balance. If you fall, your arms will help you break the fall and help you land in a safer position.
Keep your eyes on where you are going; walk in designated walkways as much as possible.
Test possible slick areas first with your toe to see how slippery it is before putting your full body weight on the area.
Don’t carry large loads while walking on snow or ice. If you do and feel yourself falling, toss the load so you can break your fall with your arms.
Use a floor mat to dry shoes when going indoors

Many slip and fall accidents are preventable, but some are not. If you believe that your slip and fall accident was caused due to the negligence of another, you should contact a personal injury attorney. This is important to determine if the conditions that caused your slip and fall were out of the ordinary or could have been prevented.

If a business or property owner is negligent and this negligence leads to your injury, you may be able to receive compensation for your pain and suffering, loss of compensation, and medical bills. However, slip and fall lawsuits, like other types of personal injury lawsuits, are hard fought; they often take months, even years, to resolve. If you have a pending slip and fall lawsuit and are struggling to meet your financial obligations, lawsuit funding may be available to assist you. Lawsuit funding services can help increase the value of your slip and fall lawsuit. By solving your immediate financial problems and helping you meet your financial obligations, a lawsuit funding company will often prevent you from settling your valuable case too early and for too little. And, you only pay a lawsuit funding company back if you win your case. It is a win-win (or lose-lose) situation.

Lawsuit Financial reminds all of you that safety precautions are the best ways to limit slip and fall accidents, especially during the winter months. You should not only take precautions to increase your safety, but take care to prevent injuries to others on your property, so as to avoid liability for slips and falls. Shovel and salt driveways, walkways, and sidewalks. Salt other areas where ice may form. Fix loose or broken hand rails. Make sure your property is well lit. If all of us take the time to make our properties (personal and business) safer, we will have far serious or tragic slip and fall accidents this winter season.

Originally posted at InjuryBoard by Mark Bello

Survive Black Friday?

Timothy Smith — Sat, 28 Nov 2009 14:19:54 GMT

A number of years ago, I represented a young woman who was injured by a crowd that had gathered outside a Wal-Mart in Cadillac Michigan after reading about a new home video gaming system that was being released. My client was 7 months pregnant and had hoped to surprise her husband with a new video gaming system for his birthday.

By 5am, the crowd was nearly 100 and the Walmart had advertised that quantities were limited to 25 gaming units. As the store approached the opening hour, the crowd was getting restless. Bullies in the back of the line began pushing forward and tempers began to flare. You'd think that Wal-Mart would have recognized this and set up a system to ensure that the sale of the systems occurred in a safe manner to the 25 first individuals in line. Simple measures such as handing out wristbands to the first 25 or any number of approaches would have spared the crowd from what came next.

At the time of the opening, a Wal-Mart employee came forward and simply unlocked the front door. The crowd surged forward as it became every man and woman for themselves. My client, who was 8th person in line, was pushed to the ground and trampled by the folks behind her.

By the time the dust settled on the stampede, my client lay on the floor of the entry to Wal-Mart - bruised, battered and going into labor from the trauma. Emergency medical technicians from Cadillac were called to the scene and transported her to Cadillac Mercy Hospital where the doctors were able to stop the labor. She wasn't able to have any x-rays of her injured pelvis, hips and back because of the risk to the fetus. She spent the next 2 months on her back wondering if her unborn child was going to be okay.

When I sent my first notice of claim letter to Walmart, they responded by denying that their store or it's employees had done anything wrong. Suit was filed against Walmart in Wexford County Circuit Court. I was able to secure a copy of the security tapes from the front door. The tapes showed the Walmart employees laughing at the crowd gathered outside and then laughing at the stampede that ensued once the front doors were unlocked. The video was very similar to this YouTube clip from a Black Friday Stampede in Grand Rapids Michigan.

http://www.youtube.com/watch?v=aeSgBL7gpAk

It's shocking to me that this happens every year at the Big Box stores like Wal-Mart, Sam's Club, Best Buy and others. Even more shocking are the security regulations that each store has drafted and implemented which are rarely followed when the store is releasing a new limited quantity gaming system or on the morning of Black Friday. Through extensive discovery [which Walmart fought every step of the way], my office obtained internal safety rules and regulations that, if followed, could have prevented my client's injury.

What's even more shocking is that Wal-Mart and other big box stores not only endanger the lives of their customers, but evn their employees aren't safe during these Black Friday Riots. In fact, one Wal-Mart employee was killed during one of the Black Friday riots like you just watched above.

http://www.youtube.com/watch?v=5S6UKRaM5fA

Wal-Mart called this death of it's employee "an unfortunate event". That's an understatement. Every big box store knows that Black Friday brings big crowds and that big crowds can cause big problems. So why is it that every year we have people getting injured and even killed while trying to shop? Why aren't stores following the rules and regulations they themselves have implemented to provide a safe shopping experience for it's customers? I suppose we can answer that question in a single word - Profits. Proper security measures are expensive to implement....

My client was one of the lucky ones. The money that Wal-Mart paid to her at the conclusion of the litigation more than covered her medical bills and her pain and suffering. More importantly, after laying in bed under doctors orders for 2 months, her child was born healthy. She still has days where she has aches and pains in her pelvis and low back from where she was trampled, but she knows that it could have been worse. Much worse.

Originally posted at InjuryBoard by Timothy Smith

There Are Far Too Many Bullies In School

Mike Bryant — Fri, 27 Nov 2009 09:48:00 GMT

I've written before about the school assault bill that got passed on the last day of the legislative session, but was later vetoed. It was the anti-bullying bill. It's intent was to add sexual orientation and physical appearance to the sorts of bullying not allowed in schools.

With the veto the Governor did say that he would direct Department of Education Alice Seagren to review the existing anti-bullying policy and to contact school districts to ensure they are meeting the requirements of the current law, which was implemented in 2005.

The Minneapolis Tribune recently had a real life story that is heartbreaking. Their 12 year old son:

an honor student who faced merciless teasing on the school bus, came home on the afternoon of Feb. 8, 2006, went into the family's barn and hanged himself.

Numbers from the National Coalition of Anti-Violence Programs suggest that something needs to change. In Minnesota, there were 73 cases of hate crimes committed in 2008, a 48 percent increase. There was a 185 percent increase in the number of incidents involving violence, and a 20 percent increase in the number of incidents involving more than one assailant.

The Children's Exposure to Violence: A Comprehensive National Survey, was published by the Office of Juvenile Justice and Delinquency Prevention with support from the Centers for Disease Control and Prevention found that:

More than 60% of youngsters had either direct or indirect exposure to violence within the past year
Nearly half the children surveyed were assaulted at least once in the past year, and more than one in 10 were injured as a result.
Nearly one-quarter of the children were the victim of a robbery, vandalism, or theft.
About 10% were victims of maltreatment (including physical and emotional abuse, neglect or a family abduction), and one in 16 were victimized sexually.

There is a debate as to if these increased numbers are due to better reporting, but the numbers are so big, it is imperative that this issue be revisited this next session.

Originally posted at InjuryBoard by Mike Bryant

Dog Bite Basics in Michigan

Timothy Smith — Tue, 24 Nov 2009 15:13:50 GMT

DOG BITE

In Michigan, when a dog bites a person, the person must sue the owner of the dog within three years from the date of the dog bite under MCL 600.5805(10). Proper plaintiffs would include:

· Person the dog bit and injured, as well as their spouse, child, or parent;

· Personal representative of the person killed in a dog attack, who would be a stand-in for the deceased and could recover on behalf of the dead person’s estate.

The proper defendant in a dog bite case includes:

1) the “registered owner” of the dog, or person who has represented him or herself to be the “owner”;

2) the “keeper,” or the “temporary caretaker” of the dog.

The jury will determine the fact question of whether the defendant having possession of the dog rises to “keeper” status and is usually defined as exercising the type of control over the dog that the owner would exert.

Three common potential causes of action for dog bite cases include:

1) The dog bite statutory action, applying to an owner of a dog

The good news in these cases is that generally if a dog bites a plaintiff, the plaintiff must only prove these facts:

· The dog bit the plaintiff and the plaintiff was injured as a result;

· The plaintiff did not provoke the bite, typically a fact question for your jury;

· The defendant owned the dog; and

· The plaintiff was lawfully at the location where the dog bite occurred.

2) Common law strict liability action against the dog owner and “keeper”

When the dog bite occurs while the dog is under the control of an owner or a “keeper,” who knew or should have known of the dog’s dangerous propensities, the plaintiff must prove in addition to the facts listed above.

3) Common law negligence

The same facts as listed under number 1 above plus that the owner or “possessor,” or temporary caretaker of the dog had the dog long enough to know of the dog’s dangerous propensities, breached a duty to the plaintiff of controlling the dog, and therefore was negligent.

More good news for Michigan victims related to defense of dog bite cases:

· Provoking the dog, an issue the jury will decide, is the only defense under a statutory claim

· Reacting to a dog’s viciousness does not constitute provocation under the statute.

If you or someone you know has been attcked by a dog, click here for a prior article I authored on how to treat bite injuries.

Originally posted at InjuryBoard by Timothy Smith

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

Trucker Hits Stray Cow on Highway and Dies. Is anyone at fault?

Steve Lombardi — Fri, 20 Nov 2009 12:01:00 GMT

Who’s to blame when a stray cow comes in the path of a moving vehicle? I’m sure that’s just what the family of the driver of a semi trailer is asking today. At about 2:15 a.m. on Tuesday October 20^th 2009 a still unidentified man hit a cow in the middle of Iowa Highway 14 between Chariton and Millerton. After the truck hit the cow it went into a ditch and then into a creek. Apparently the truck driver died. In rural Iowa this isn’t such a rare occurrence.

With cases like this one, lawyer-talk would refer to it as animal at-large case. For layman it’s a black cow standing on the highway. I know it makes no sense to most people but the law isn’t interested in the pop culture or hip talk or any talk that takes away from its history. The law is passed on down from generation to generation of lawyers, judges and some farmer legislators. We have to talk the same language and so it’s not something that can change with generations. Maybe that’s one reason why law school is difficult; we talk what must seem like a foreign language to most people. But that’s the nature of the law.

So this cow in the motorway is standing there and it causes an accident. The Iowa Supreme Court on November 13, 2009 published its opinion in Thompson vs. Kaczcinski and Lockwood, No. 08-0647 involving slightly different facts but resting on the same legal principles applicable in the news case under consideration. In its decision the Court agreed with the Iowa District Court a duty could not rest upon Iowa Code Section 318.3 but could rest upon the common law. Kaczcinski had to do with a disassembled trampoline that wasn’t secured to the ground and blew into the roadway causing an obstruction that resulted in Thompson swerving to avoid it, then rolling his car and suffering injury.

I find the Court’s narrow reading of the legislature’s intent behind 318.3 unsettling. Recent thinking of how the courts are to act when interpreting the law relegates the duties of the third branch to that of a scrivener. The judicial branch shouldn’t be mindless robots doing the bidding of the uneducated legislature. The judicial branch is supposed to be the branch of government with a heart, soul and mind where justice is more than just your day in court.

Most laypeople reading t his will scratch their heads wondering what the Court is talking about. Suffice to say they sent it back to Judge Goodhue in Madison County for trial on the common law negligence count. That means the Reverend Thompson gets his day in court for the jury to decide whether the owners were negligent in not tethering it down to the ground and then not acting quick enough after the storm to secure the trampoline from the highway.

The part of the decision most people would find quirky but right on the money are the inferences by concurring Justice Cady mentioning patio furniture and things we have in our yards that might act similar with wind gusts. While I appreciate the thought it’s not likely a picnic table has the same sail-like qualities as does a large sheet trampoline.

To read Thompson vs. Kaczcinski and Lockwood, No. 08-0647 follow the link.

Originally posted at InjuryBoard by Steve Lombardi

What happens when a member of your hunting party decides he wants to take “random target practice”?

Steve Lombardi — Thu, 19 Nov 2009 12:01:00 GMT

In this case the death of an 18-year-old from Manchester was caused by accidentally being shot by a member of his own hunting party. These men were hunting on Monday October 19^th 2009 about one mile north of Dundee when a member of the hunting party decided to take some random target practice and accidentally shot and killed a fellow hunter. The member of his hunting party was unidentified according to the Delaware County Sheriff’s Office. The dead man was out of sight behind some dense foliage when the accident occurred officials are reporting.

Like a fact situation out of law school case books this case intrigues anyone who takes a shine to the law.

So what are the rules of your hunting party? Make sure you know the rules and that all members of the hunting party are in agreement. Never randomly fire a weapon without knowing where ever member of the party is located. Do you have a group pow-wow to discuss where everyone will be and how the group will proceed? Does it take place before everyone removes the safety? Or are you all just playing Russian roulette? Is this just “one of those things that happens” or are there ways to avoid the risks associated with hunting in groups?

It shouldn’t take you long to recall a most recent incident involving very prominent people who were hunting quail when a member of the party was shot in the face. (February 11, 2006) For a list of articles follow the link. Ignoring the comedic crap someone added listen to what the Vice President says about fault. Hunting with a party requires knowing the location of other party members before you pull the trigger. Make sure your homeowner’s insurance covers any liability you may have in the event you shoot another member of your hunting party.

http://www.youtube.com/watch?v=pR7CH9zvD6s

I rest my case.

Originally posted at InjuryBoard by Steve Lombardi

Virginia Man Dies as a Result of City's Negligence

Christopher Nace — Mon, 16 Nov 2009 10:25:45 GMT

The Washington Post reports today that 73 year old Harold Spencer of Warrenton, Virginia unnecessarily died following a fall at the newly-opened Warrenton-Fauquier Visitor Center:

Warrenton native Harold Spencer walked out of the newly built Warrenton-Fauquier Visitor Center and tripped over a 16-inch wall around a cistern just outside the front door. Spencer, 73, fell awkwardly and broke his neck. Three days later, he died.

The Post goes on to report that

Spencer, a stockbroker who raised his five children in Warrenton, was on the board of the foundation that helped build the visitor center, and his family was not inclined to sue his home town. But then one of his sons discovered that the visitor center had failed its final inspection four times for not putting a guardrail around the cistern. They also found that the town had moved into the center without an occupancy permit, records show.

"To our mind, it was never about the money," said Spencer's widow, Ellie Spencer. "It was about accountability. It was an unsafe situation, and they didn't do anything about it, and someone got hurt. Badly."

So often we hear about so-called frivolous lawsuits. But we should remember that for every lawsuit that is labeled "frivolous" by a defendant, there is a plaintiff that was seriously injured. Often times, it is necessary to initiate litigation to learn the true details of someone's negligence.

So often all a plaintiff wants is an apology, but instead ends up with the run-around:

"What really launched this lawsuit for me," Spencer said, "were the lack of apologies and acknowledgments. And what burns me up today is that when the town could have issued one, they decided to undercut their own $1.25 million gesture by belittling the settlement, denying responsibility and now trying to blame a nonprofit organization."

This tragic death didn't have to happen. But it is equally as tragic that the city has failed to take responsibility for its obvious negligence.

Originally posted at InjuryBoard by Christopher Nace

Tort Reform Begins at Home with Maintenance

Steve Lombardi — Mon, 09 Nov 2009 12:01:00 GMT

According to the Cedar Rapids Fire Department the fire started on October 8^th 2009 was started by a 3 year old boy playing with matches or a lighter. What’s still unclear is how a 3-year-old obtained the matches or lighter. Another question all parents should ask is why the batteries had not been replaced in the smoke detectors making them operational. When was the last time you tested the detectors in your house?

Here is the link to the story. One-year-old Diarrana Lockett who was severely injured in the fire has since had her condition improve, but further details beyond that are still unavailable. Firefighters had originally responded to the townhouse at 3000 J Street S.W. around 4:33 p.m. Thursday and found the girl on the second floor next to a mattress. Her grandmother, Lesia Funchess had put the young girl to bed at about 3 p.m., sometime after that her grandson had gone upstairs then came back down reporting that there was a problem upstairs.

The grandmother and an unidentified neighbor tried to put the fire out, but were unsuccessful in their attempts. The fire department believes that the fire was started on the mattress.

Part of child-proofing a home is removing temptation. Another part is checking batteries in smoke detectors. Children have a natural curiosity that at times leads to danger. This appears to be one of those situations. House fires like this one should be a warning or an example for other families to get busy checking batteries and the location of matches and lighters. Make them inaccessible.

We wish the families well and if our law firm can be of any help to others with legal matters arising due to house fires, you can contact me through the Lombardi Law Firm website. House fires create legal issues with the insurance companies refusing to pay claims or offering less than the owners believe they are owed. Also in the case of wrongful death there can be claims involving insurance coverage. We assist with each type of claim.

Originally posted at InjuryBoard by Steve Lombardi