Earlier this month, an appellate court in Michigan issued a written opinion in a premises liability case brought against a city, alleging that the condition of a road was unsafe. In the case of Kozak v. City of Lincoln Park, the appellate court determined that the lower court should not have granted the defendant city’s motion for summary judgment because the plaintiff presented a prima facie case of negligence, on which facts the government may not be entitled to immunity.

HighwayThe Facts of the Case

Kozak was injured as she tripped while crossing the street in the city of Lincoln Park. According to the court’s factual summary, there was a three-inch differential in the height of two concrete surfaces that met, creating a tripping hazard. Kozak argued that this was unreasonably dangerous, that the City should have known about it, and that the failure to correct the dangerous condition was negligent.

The government had the Director of Public Services testify on its behalf that the condition at issue was not really a safety hazard and that it was still safe for public travel. The trial court then granted the defendant’s motion for summary judgment, finding that there was insufficient evidence presented to overcome the hurdle of government immunity.

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Earlier this month, a state appellate court issued a written opinion in a premises liability case that was filed by a man who was paralyzed after he dived off a diving platform in a state park. The court noted that it was sympathetic to the plaintiff, but that the law had to be applied in an unemotional way. In so doing, the court found that the state was immune from the lawsuit based on recreational immunity.

Roy v. State: The Facts

Roy was Wooded Lakeparalyzed when he dove off a diving platform into the murky waters below it. He filed a premises liability lawsuit against the state, as well as the owner and operator of the park, alleging that the state had not done enough to protect against the type of injury he sustained.

The evidence presented at trial showed that there were “no swimming” signs up around the park, but that people routinely disobeyed the signage. There was even testimony that there were bathhouses and lifeguards occasionally on duty who would only stop swimmers when they would dive head-first into the pond.

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The New York Court of Appeals, the highest appellate court in the state, recently released a decision that affirmed two lower court decisions dismissing a plaintiff’s medical malpractice claim for the plaintiff’s failure to timely serve a notice of claim on the defendant, as required by statute. The plaintiff’s claim alleged that the defendant provided substandard prenatal care to the plaintiff’s mother while he was in utero, and that the defendants committed additional malpractice while delivering the child, resulting in permanent injury and disabilities. As a result of the most recent court of appeals decision, the plaintiff and his mother will be unable to recover damages for the alleged negligence of the defendant.

Baby's FeetThe Plaintiff Was Born Prematurely by an Emergency Cesarean Section

The plaintiff in the case of Wally G. v. NY City Health and Hospitals Corporation was born at a hospital operated by the defendant in June 2005. According to the facts discussed in the appellate opinion and an accompanying dissenting opinion, complications arose in the pregnancy, and an emergency cesarean section was performed to deliver the baby prior to the expected delivery date. The complaint filed in the case alleged that the defendant failed to act quickly enough upon noticing the complications of the pregnancy and then negligently failed to treat the fetal distress. As a result of the defendant’s alleged negligence, the plaintiff developed several neurological and cognitive disorders, including cerebral palsy, seizures, and problems with speech.

Plaintiff’s Mother Serves a Notice of Claim After the 90-Day Time Limit

Approximately 18 months after the plaintiff was born, his mother filed a notice of claim with the defendant, stating her intention to seek compensation for the medical malpractice that allegedly resulted in the plaintiff’s injury and disabilities. Under New York municipal law, medical malpractice claims against a public medical provider such as the defendant require a notice of claim to be issued no later than 90 days after the alleged malpractice occurred. After the plaintiff filed the medical malpractice lawsuit against the defendant in 2008, the plaintiff requested the court grant leave to file a late notice of claim, but the court did not grant the motion. Shortly afterward, the lawsuit was dismissed based on the plaintiff’s failure to meet the 90-day notice-of-claim requirement.

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Earlier this month, a Rhode Island appellate court issued a written opinion affirming the dismissal of a plaintiff’s premises liability lawsuit based on the fact that he initially failed to provide the correct date of the injury and then failed to attend a hearing on the defendant’s motion to dismiss. In the case, Santos v. Laikos, the court held that there were no extenuating circumstances excusing the plaintiff’s failure to object or attend the hearing, so dismissal was proper.

Bar SceneThe Facts of the Case

Back on April 30, 2011, the plaintiff was injured in what he described as a “melee” that occurred at the defendant’s bar. Just short of three years later, on April 18, 2014, the plaintiff filed a lawsuit against the owners of the bar. However, in his complaint, the plaintiff mistakenly claimed that the incident occurred on November 4, 2010.

Rhode Island has a three-year statute of limitations in premises liability cases, and so the defendant electronically filed a motion to dismiss, arguing that the statute of limitations had run by the time the plaintiff filed the lawsuit. The defendant also mailed a copy of the motion to the plaintiff. The court scheduled a hearing on the defendant’s motion, but the plaintiff failed to appear. The court granted the defendant’s motion.

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Premises liability lawsuits, more commonly known as slip-and-fall cases, are based on the legal theory of negligence. Essentially, these claims rely on the the duty that a landowner or occupier owes to those people who are invited onto its land. Historically, there have been three classes of “guests”:  invitees, licensees, and trespassers.

Snowy RoadInvitees are owed the highest duty from landowners. Most commonly, invitees are customers of a business. Licensees are the next-most protected group, and they consist of social guests. Finally, trespassers are owed the most minimal duty, and generally this only requires that a landowner not employ traps or other devices to intentionally harm the trespasser.

Theories of Recovery Available to Premises Liability Plaintiffs

When someone is injured on the land of another, they may file a lawsuit against the landowner. The duty owed to the plaintiff will depend on their classification above. Once the plaintiff’s status is determined, the court will then determine if the defendant violated that duty of care. This can result in one or more of several available claims. A recent premises liability case arising out of a slip-and-fall accident outside a hotel illustrates several potential theories of liability.

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In Maryland and across the United States, there is a system in place of appellate courts that are able to review the decisions of the lower courts. In most states, Maryland included, there are three levels of courts, starting with the trial court, then the intermediate appellate court, and finally the state supreme court. Above all of these is the United States Supreme Court, which intervenes only in select cases. Most cases are resolved within the state judicial system.

Garbage TruckJudges are human and can make mistakes. Thus, the system is set up to allow for appellate and supreme courts to review the decisions of lower courts in order to make sure that the lower court applied the law correctly. If a higher court decides that a lower court was wrong in its application of the law, the higher court can reverse, or overturn, the lower court. That is exactly what happened in a recent case brought by a woman who rear-ended a garbage truck and sued the driver as well as the truck’s owner for damages.

Torres v. Pabon:  The Facts

Torres was driving her Nissan early in the morning along a New Jersey highway before the sun had come up. She approached what she described as a “dark silhouette,” but she did not realize that what she saw was a truck until it was too late. She applied her brakes but was unable to stop in time and struck the back of the truck.

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Determining who is at fault in a serious or fatal accident is not always as easy as it may seem. In many cases, there are several parties involved, each with their own role in the accident. In some cases, the injured party may also be partially at fault for the accident. Each of these considerations is relevant in determining what, if anything, the injured party is entitled to receive from the negligent party or parties.

Bicyclist in RoadGenerally speaking, Washington, D.C. employs the doctrine of joint and several liability. This means that all wrongdoers can be held responsible for the total amount of damages suffered by the plaintiff. This favors plaintiffs because it allows for an injured party to receive full compensation from any one of several liable parties involved.

However, Washington, D.C. also uses the strict doctrine of contributory negligence, which acts to prevent an injured party from recovering at all if they are even the slightest bit at fault. This means that if a person is determined by a judge or jury to be just 5% at fault, they may be prevented from recovering a penny for their damages, no matter how serious.

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Earlier this month, the Supreme Court of California issued a written opinion holding that a doctor, nursing home employee, or other person with a custodial relationship to an elderly person may be held liable based on that person’s failure to refer the resident to a medical specialist when the situation calls for such a referral. In the case, Winn v. Pioneer Medical Group, the plaintiff was ultimately unsuccessful in establishing the necessary relationship between the defendant and the elder, but the court did note that liability could be appropriate in some situations.

Blood Pressure CuffThe Facts of the Case

The plaintiffs in the case were the surviving family members of a woman who had died while in the care of the defendant doctors. The elderly woman was being provided outpatient treatment by several doctors. Neither of the doctors made a referral to a specialist, although some facts were evident that would suggest such a referral was appropriate. Ultimately, the elderly woman passed away from blood poisoning. The plaintiffs then filed a claim of elder abuse against the doctors, claiming that it was negligent of them to not refer her to a specialist.

The defendants asked the trial court to dismiss the case against them, claiming that only care custodians can be held liable for elder abuse. The lower court agreed. However, on appeal to the intermediate appellate court, the decision was reversed in the plaintiffs’ favor. The defendant then appealed that order to the state’s supreme court.

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Earlier this month, the Wisconsin Supreme Court issued an opinion dismissing a plaintiff’s case against a state employee, based on the plaintiff’s failure to strictly comply with the notice requirements outlined in the state’s statute governing cases against governments and government employees. In the case, Sorenson v. Batchelder, the issue was whether personal notice of the lawsuit provided to the state’s attorney general complied with the requirement that notice be provided through certified mail.

Wrecked CarThe Facts of the Case

In October 2010, a state employee rear-ended a vehicle that was pushed into the plaintiff’s vehicle, causing property damage and personal injury to the plaintiff. Three months later, the plaintiff served notice of the claim to the attorney general in the state’s capitol. After investigating the claim, the state government issued a check to the plaintiff in the amount of $241. Not satisfied with the compensation, the plaintiff then filed a negligence lawsuit against the state employee, seeking a fuller award.

Before the case reached trial, the defendant asked the court to dismiss the case because the plaintiff failed to strictly comply with the state’s notice requirement, which required that notice of a claim be delivered by certified mail. The lower courts determined that service was proper, but the state employee appealed to the highest state court.

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In many personal injury and medical malpractice cases, the bulk of the litigation actually occurs before a case reaches the trial phase. Much of this pre-trial litigation occurs over discovery-related matters, when the parties essentially argue over which evidence will be considered at trial and which evidence should be kept out. After the evidentiary issues have been resolved, either party is free to move for summary judgment based on the evidence presented to the court thus far in the proceeding.

Doctor's White CoatIn Washington, D.C., the Rules of Civil Procedure explain that summary judgment is appropriate when “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Simply put, this means that the party filing for summary judgment is claiming that the other party cannot win the case, even if the court resolves all issues in their favor. The credibility of a witness or document is not at issue in a summary judgment proceeding.

Of course, if the evidence does present an issue of material fact, the moving party cannot legally be entitled to summary judgment, since that issue must be resolved by a fact-finder (either by a judge or jury) at a trial. A recent medical malpractice case out of Indiana illustrates the point well.

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