Claiming for a Slip and Fall Injury

Veritas Legal Media – 757-582-1836 – veritaslegalmedia@hotmail.com

A case that was settled last year against PetSmart in Newport News, Virginia was a high profile example of a slip and fall lawsuit.

In Feb. 2011, PetSmart settled a federal lawsuit over allegations that employees at its Newport News store failed to clean up dog feces, leading a customer to slip and injure himself. The pet supply store and Robert W. Holloway of Poquoson, VA reached an agreement to avoid trial. It’s not known how much this case was settled for.

 Mr. Holloway and his daughter were at the Jefferson Avenue store on Jan. 18, 2009, the Virginian-Pilot newspaper reported. As he headed for the pet treats aisle, “my left foot slipped in a pile of dog feces that was not visible,” Mr. Holloway stated in court documents.

Mr. Holloway said after slipping on the feces he grabbed hold of his daughter and wrenched his back. “The dog feces in question was not open and obvious,” he said in legal documents.

 The fall had painfu and long-lasting consequencesl, leading to Mr. Holloway to have to undergo a back operation.

 The PetSmart case was unusual; more typically victims fall on wet floors. In a recent case in Georgia (GA) a man who slipped on a floor of a Kroger store and damaged his spine was awarded $2.3 million.

 As an experienced personal injury lawyer one of my first considerations in slip and fall cases is who owns the property on which the accident occurred.

 Commercial, private and public property owners may be held responsible for slip and fall accidents that occur on their property, although not every fall can be the subject of a lawsuit. If you are unlucky enough to fall on the floor of a Wal-Mart store, for example, and there is no contributory factor, you are unlikely to have a case.

If the floor has been washed and there are inadequate warning signs, or if dishwashing liquid has spilled on the floor and nobody has bothered to clean it up, that’s a different matter.

In slip and fall cases, a “reasonable person” standard derived from common law is used to establish whether the landowner has lived up to a duty in maintaining and keeping the property safe and also whether the injured party was acting reasonably.

Although there are different specifics depending on what state you live  in, generally a victim must prove the property owner to be held responsible for injuries on the property, the owner must have caused the condition or known about the dangerous condition and done nothing about it. So, in the example of a store, the owner could hardly be held responsible if a customer knocked a jar off a shelf and spilled a fluid and another customer slipped on it a few minutes later.

But if a customer was responsible for a spillage and members of staff simply walked on past it, nobody bothered to clean it up and another customer slipped on it later on, the store could be held responsible.

 Reasonableness is a subjective standard. As with any negligence action, the victim in a slip and fall case needs to demonstrate that his or her injuries were “proximately caused” by the property owner’s actions or inaction.

 Sadly many victims in these kinds of actions fail to seek legal advice. The recent verdict in Georgia, shows this can be a mistake because large awards are often available to slip and fall victims.

Ford Recalls 129,000 Vehicles over Faulty Wheel Studs

December, 2011 – Veritas Legal Media 757-582-1836, veritaslegalmedia@hotmail.com

There can be few more alarming scenarios than a wheel falling off your car when you are driving at 60 mph on the Interstate.

But that’s the life threatening concern raised by the recall of 129,000 Ford Fusions and Mercury Milans, according to the New York Times.

Ford has recalled almost 129,000 of its 2010-11 Ford Fusions and Mercury Milans. The automotive giant says the wheel studs on vehicles equipped with 17-inch steel wheels could break, with the alarming potential of a wheel coming loose and falling off.

The recall is detailed on the website of the National Highway Traffic Safety Administration. According to the New York Times, Ford informed the safety agency about a problem in August 2010, when some wheel studs fractured at a lug-nut tightening at the plant in Hermosillo, Mexico, where the sedans were built.

The automobile industry has an unenviable record of recalls and faults. Some of these have led to serious injuries and deaths. In July 2011, a leaking fuel line from a new Chevrolet Traverse claimed the life of a sailor from Moyock, NC on the I-64 in Norfolk.

Toyota has made a number of major recalls and wrongful death lawsuits are pending claiming victims were killed by sudden and unexpected acceleration in Toyotas.

In 2009 a flaw in the design of a gas pedal may have been linked to the death of a family of four in a Lexus

If a manufacturer is to blame because of a defect, there are grounds for a wrongful death lawsuit or a personal injury lawsuit.

Distracted Driving Report calls for Ban on All Cellphone Use Behind the Wheel

January, 2011 – Veritas Legal Media – 757-582-1836 – veritaslegalmedia@hotmail.com

a report that pulled few punches, federal safety inspectors looking into the dangers of distracted driving have concluded all cellphone use behind the wheel is unacceptably dangerous and have urged all states to impose total bans.

The report by the five-member National Transportation Safety Board follows a recent series of fatal crashes — including one in which a teenager sent or received 11 text messages in the same number of minutes before an accident . The recommendation would even apply to hands free devices, the Wall Street Journal reported.

See this video of the dangers of distracted driving using a simulator.

“States aren’t ready to support a total ban yet, but this may start the discussion,” Jonathan Adkins, a spokesman for the Governors Highway Safety Association, told the Wall Street Journal.

There have been numerous deaths across the US linked to distracted driving but one accident in particular weighed on the minds of the board.

“The immediate impetus for the recommendation of state bans was a deadly highway pileup near Gray Summit, Mo., last year in which a 19-year-old pickup driver sent and received 11 texts in 11 minutes just before the accident,” the Wall Street Journal reported.

Distracted driving is also an escalating problem in Virginia (VA). A recent five year study released in 2011 by the Virginia Department of Motor Vehicles found distracted driving deaths increased by 22 percent at a time when overall road deaths fell by a similar magnitude.

A recent study by AAA and Seventeen magazine found teens are particularly at risk of distracted driving with 86 percent admitting to taking their eye off the wheel to text, use a cellphone or another device.

Teens are about four times more likely to be involved in a fatal crash than adults. Just a few weeks ago a 17-year-old passenger died in a crash in Charles City County, VA. The driver was also 17 and alcohol was a factor, police said.

Distracted driving is a significant factor in teen deaths. Texting is banned in Virginia and it is unlawful for drivers under the age of 18 to use a cell phone.

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A Guide to Domestic Torts

Veritas Legal Media – 757-582-1836, veritaslegalmedia@hotmail.com

In May 2011 a lurid story broke on the entertainment website TMZ about an “A-list” celebrity who is being sued for more than $20 million for intentionally transmitting the venereal disease herpes.

“An unnamed plaintiff has sued “an A-list celebrity of substantial fame internationally,” claiming the celeb came on to the plaintiff in Las Vegas and swore he was STD free, the TMZ report stated.

Few details were available of the case and neither party was named. But it sheds light on the little known family law area of domestic torts.

Contracting herpes is a serious matter. Aside from the embarrassment and the physical discomfort, there is no cure for herpes. Even when the symptoms are in remission, it’s likely to affect the ability of the person who contracted the disease, to engage in future sexual relations. Contracting a sexually transmitted disease (STV) from a partner is just one of a raft of domestic torts.

 In some states such as California, the victim may be able to obtain compensation for additional costs as well as the emotional distress caused. In severe cases he or she might be entitled to punitive damages for physical, emotional or psychological and physical injuries suffered over the length of a relationship.

There’s also the question of whether a spouse could receive a spousal support award in the courts if he or she contracted an STD. The problem of proof and the extensive recovery program means few cases of this nature are brought.

“No, it is not likely or commonplace to see a divorce court increase the spousal support award under these circumstances even though the court would have the legal authority to do so,” concluded Robert L. Mues, an attorney and author of Divorce in Ohio.

States including North Carolina recognize tort liability between spouses. A civil action may be brought against a spouse for battery, assault or infliction of emotional distress, the latter known as “heart balm” cases.

Infliction of emotional distress in the absence of physical abuse is limited to few jurisdictions because it can be a difficult and subjective area that calls for the involvement of psychological experts.

States including North Carolina also recognize claims for alienation of affection and criminal conversation.

Notwithstanding its name, criminal conversion is a civil matter. A person who has engaged in sexual intercourse with a married individual, can be liable in an action, even in cases where the married person was separated at the time of the affair.

In practice it’s rare for so called “marriage wreckers” to be sued. The innocent spouse who wants to pursue a lawsuit against a third party, alleging alienation of affections, needs to prove the marriage was viable and based on genuine love and affection, that the love was destroyed and the third party was responsible for the deterioration of the marriage, although the third party does not have to be proved as the only factor responsible for breakdown of the relationship.

Liability under this law could also extend to an in-law who encourages one spouse to leave the other. The innocent spouse could recover damages for a number of factors including emotional distress, anxiety and a loss of financial support.

Although there are wide variations from state to state, the concept of domestic tort is deeply rooted in common law and the principle that when someone harms you be it physically, emotionally or financially, you are entitled to compensation. It could be a stranger or a spouse.

Invasion of privacy is another domestic tort recognized in some states. Actions could include the publication of intimate photos, hacking into an e-mail account, wiretapping, or stalking. Recently in Chicago a woman sued her ex-boyfriend for allegedly posting nude photographs of her on an X-rated website.

As well as the obvious cases such as assault and battery, a spouse may seek damages against an estranged partner for a financial malfeasance if there has been a fraud or a breach of a financial duty.  This could include theft or goods or the transferal of an insurance policy.

Not only may a spouse’s rights be addressed through the tort law, but so are the rights of children.  A child may have a cause of action for assault and battery if he or she was hurt by a parent for any abuse or neglect.

One of the most interesting and evolving areas of domestic torts, which is a corollary of domestic violence, concerns Battered Women’s Syndrome. Can a woman recover damages for the feelings of guilt and fear caused by an abuse relationship?

“The most publicized and envelope-pushing type of domestic torts comes out of domestic violence and involves the Battered Women’s Syndrome,” writes New Jersey family lawyer Elliot H. Gourvitz.

New Jersey courts first recognized the Battered Women’s Syndrome as a defense in a 1984 criminal case.

“The Syndrome itself is such that battered women exhibit common personality traits: low self esteem; traditional beliefs about a woman’s role, family and home; female sexuality, tremendous feelings of guilt that their marriages are failing; and the tendency to accept responsibility for the

batterer’s action. These battered women are paralyzed by the fear of their spouse’s response should they attempt to leave the relationship,” Gourvitz wrote.

 Domestic torts are a rapidly moving area but some commentators point to the difficulties faced by those who want to bring cases. Barriers to compensation were explored in this 2001 article.

David Macaulay

 veritaslegalmedia@hotmail.com

Trans Vaginal Mesh Lawsuits Mount

Jan. 2012 – Veritas Legal Media – 757-582-1836 – veritaslegalmedia@hotmail.com

 Have you ever had an oper­a­tion or a sur­gi­cal pro­ce­dure that caused more prob­lems than the con­di­tion it was meant to rec­tify?  If so, you can prob­a­bly sym­pa­thize with hun­dreds of women who are tak­ing out law­suits over vagi­nal mesh implants.

Lit­i­ga­tion on this issue moved for­ward on Jan. 26, 2012, at a hear­ing in Miami, FL, when lawyers sought to coor­di­nate the many trans­vagi­nal sur­gi­cal mesh law­suits that are presently being brought across the USA.  Lawyers have filed motions with the U.S. Judi­cial Panel on Mul­ti­dis­trict Lit­i­ga­tion (JPML) rep­re­sent­ing women who say they suf­fered injuries after being implanted with vagi­nal mesh, which has been used for the treat­ment of stress uri­nary incon­ti­nence (SUI) and pelvic organ pro­lapse (POP).

Massivelaw­suits are now being brought against three man­u­fac­tur­ers — Amer­i­can Med­ical Sys­tems, Inc., Boston Sci­en­tific Corp. and Ethicon, Inc.

This has been a prob­lemacross the US for some years and it’s not as if the reg­u­la­tors haven’t had time to make patients aware of the dan­gers.  In Octo­ber 2008, the U.S. Food and Drug Admin­is­tra­tion issued a notice about trans­vagi­nal sur­gi­cal mesh.  It said the FDA had received more than 1,000 reports from nine sur­gi­cal mesh man­u­fac­tur­ers of com­pli­ca­tions that were asso­ci­ated with sur­gi­cal mesh devices.  Painful com­pli­ca­tions listed by the FDA included  bowel, blad­der, and blood ves­sel per­fo­ra­tion dur­ing inser­tion of the mesh and pain and dis­com­fort in the wake of operations.

The reg­u­la­tion, or in this case, the lack of reg­u­la­tion of these prod­ucts, is a cause for con­cern. These vagi­nal mesh prod­ucts were approved through the FDA’s con­tro­ver­sial 510(k) fast-track approval process, a sys­tem that’s more than 35 years old and under fire.  Unlike drugs there is no test­ing require­ment under 510 (k). The only require­ment is that a prod­uct should be sub­stan­tially equiv­a­lent to a device that has already been approved for sale. This highly con­tro­ver­sial approval process was also used for DePuy hip trans­plants – another device that has led to intense suf­fer­ing for patients, not to men­tion mul­ti­ple lawsuits.

Recently the FDA sent out a let­ter to man­u­fac­tur­ers of mesh prod­ucts call­ing for new post-marketing stud­ies on trans­vagi­nal mesh.  This seems like a clear case of clos­ing the sta­ble door after the horse has bolted, although if it helps bring change in the reg­u­la­tion of sur­gi­cal devices, some good will have come out of it.

Unfor­tu­nately, change has come too late to help many women who have been left in pain by faulty devices that stud­ies have shown pro­vide lit­tle clin­i­cal benefit.

Compressed Gas Poses a Fatal Hazard

The dangers of compressed gas have been outlined in a report into three accidents at a chemical manufacturing plant in West Virginia (WV) in 2010.

Failures at the DuPont Corporation’s Belle chemical manufacturing plant which included the fatal release of phosgene gas, were outlined in the report by the U.S. Chemical Safety Board, Fire Engineering reported.

 

The three accidents that occurred on January 22 and 23, 2010, at the West Virginia (WV) plant – including a fatal release of deadly phosgene gas, a chemical used as a chemical weapon in World War One.

In this fatal accident an 58-year-old worker died from exposure to phosgene. The chemical leaked when a braided steel hose attached to a tank ruptured. The U.S. Chemical Safety Board’s final report followed extensive public consultations.

CSB Chairperson Rafael Moure-Eraso said in the Fire Engineering publication report: “Our final report shows in detail how a series of preventable safety shortcomings — including failure to maintain the mechanical integrity of a critical phosgene hose — led to the accidents. That this happened at a company with DuPont’s reputation for safety should indicate the need for every chemical plant to redouble their efforts to analyze potential hazards and take steps to prevent tragedy.”

The board also released this safety video about the dangers of compressed gas.

When things go wrong in industry the results can be horrific, as seen at this chemical plant. The consequences of deadly mistakes can also be costly for the companies involved. Recently we  reported on how two companies responsible for the faulty construction of an industrial oil heater at a natural gas plant in Texas (TX) were ordered to pay $85 million to survivors of a worker killed after a heater at the plant exploded.

Official investigations into fatal industrial accidents often result in violations or shortcomings being uncovered be it the death of a sanitation worker in a Norfolk, VA truck or the deaths of many miners at a West Virginia (WV) coal mine.

When gas is compressed there is a potential toxicity and asphyxiation danger even in the case of harmless gases such as nitrogen because the compression makes the gas a potential bomb, not to mention a potential legal time bomb for companies that fail to take all necessary precautions.

Outbreak of Listeria in Melons is Linked to 25 Deaths

2011

The outbreak of listeria linked to cantaloupes that killed 25 people will go down as the deadliest food poisoning episode in the United States in a quarter of a century and could spark lawsuits. This tragic food poisoning episode is being looked into the House Energy and Commerce Committee, Bloomberg Business week reports.

Members of the committee have asked for a briefing from officials at the Colorado (CO) cantaloupe farm linked to the listeria outbreak, and asked that documents are preserved.

In all the disease affected 123 people in 26 states and goes down as the deadliest U.S. food outbreak in more than a quarter-century.

“The committee has a long bipartisan history of conducting food safety oversight and is very concerned about these recent developments,” the letter to the farm stated.

Bloomberg reported that health inspectors “found widespread contamination and poor sanitary practices at the packing facility,” linked to the outbreak.

 The listeria outbreak linked to cantaloupes was even more serious than the 2009 salmonella in peanut products outbreak that led to eight deaths and 107 hospitalizations.

Listeria outbreaks often happen several times per year, but they are usually linked to deli meats and cheeses, and are seldom on this scale. While most healthy adults can ingest listeria with few negative effects, elderly people and pregnant women are especially vulnerable. The median age of those sickened in the tainted melon outbreak is 78.

Listeria symptoms include muscle aches, fever and other significant gastrointestinal problems.

It seems hard to believe this case will not end up in lawsuits, given the apparent insanitary conditions at the Colorado cantaloupe plant. Out attorneys have represented families of deceased people in many wrongful death cases and achieved large payouts including an $8.6 million jury verdict in one of these cases.