Late last year, an appellate court in Ohio issued a written opinion affirming an intermediate appellate court’s decision that a city that allowed a stop sign to become overgrown with foliage was not entitled to governmental immunity. In the case, Bibler v. Stevenson, the court concluded that the city was not entitled to immunity because the stop sign was placed due to a state law requiring stop signs to be placed at intersections of “through highways.”

Stop SignThe Facts of the Case

Bibler was injured in a car accident when another motorist, Stevenson, allegedly ran a stop sign. Stevenson claimed that he did not see the stop sign, and the responding police officer agreed that the sign was overgrown with foliage and not visible to approaching motorists.

Bibler later filed a personal injury lawsuit against both Stevenson and the City of Findlay, the local government of the place where the accident had occurred. Bibler settled with Stevenson, and the case proceeded against the city only. In a pre-trial motion, the city argued that it was entitled to government immunity because under state law, governments are only liable for negligence involving “public roads,” which do not include traffic-control devices. Bibler agreed with that general statement but argued there was an exception when the traffic-control device was by the state’s “manual of uniform traffic control devices.”

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Toward the end of last year, a jury in Ohio reached a verdict in a case involving a man who had developed testicular cancer after drinking water that was contaminated by a DuPont plant nearby. According to an industry news source, the plaintiff lives near the Ohio-West Virginia border in Washington County, where it became apparent several years ago back that the DuPont facility was leaking perfluorooctanoic acid, also known as PFOA or C-8, into the area’s drinking water supply.

FactoryAfter a jury trial, the plaintiff was awarded $2 million for his injuries. Additionally, the report indicates that the jury found “actual malice,” meaning that punitive damages may also be awarded if the jury decides they are appropriate. The punitive damages phase of the trial is slated to move forward later this year. If the plaintiff is successful in obtaining punitive damages against DuPont, it is likely that his award would increase substantially.

This case is the third of its kind holding DuPont responsible for contaminated water in Washington County, Ohio. The other two cases, decided in 2015 and 2016, resulted in $1.6 million and $5.6 million, respectively. The $5.6 million award contained $500,000 in punitive damages. There are 39 more similar cases pending in the Ohio court system.

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Under the legal theory of premises liability, business owners have a general duty to ensure that the area accessible to customers is kept free from unreasonably dangerous conditions. When a business owner fails to take the necessary precautions to either remedy or warn visitors of a known harm, the business owner may be held liable for any injuries caused as a result.

HandgunOne of the key issues in premises liability cases is whether the defendant landowner knew or should have known that the dangerous condition existed at the time of the plaintiff’s accident. If it is determined that the business owner was oblivious to the harm and that the lack of knowledge was reasonable under the circumstances, the plaintiff’s premises liability case will likely fail. A recent case involving a tragic shooting at an apartment complex illustrates how a defendant landowner’s lack of knowledge of the dangerous condition causing the plaintiff’s injury can be fatal to a plaintiff’s case.

Mitchell v. Ridgewood East Apartments:  The Facts

Mitchell was visiting his aunt over New Year’s Eve, who lived at the defendant apartment complex. After midnight, Mitchell’s aunt went to bed, but Mitchell remained in the common areas of the complex, talking to other residents and guests. At around 2:55 a.m., Mitchell’s aunt heard shots and ran outside to find that Mitchell had been shot in the head.

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Earlier this year, a state appellate court issued a written opinion in a premises liability case brought by a woman who had slipped and fallen on a property co-owned by two individuals and maintained by a condo association. In the case, Garant v. Winchester, the court ultimately dismissed the plaintiff’s amended petition naming the condo association in the lawsuit because it was filed after the applicable statute of limitations had expired.

CondosThe Facts of the Case

In August 2010, Mrs. Garant tripped and fell outside 18-20 Woodland Court in Lincoln, Rhode Island. Believing that her fall was precipitated by a dangerous condition on the property, Garant planned on filing a premises liability case against the two owners of the property. Garant was aware that the property was maintained by a condo association, and she set out to determine the specific association that was in charge of the maintenance at the location so that the association could also be named in the lawsuit.

Garant consulted with the insurance company that covered the property and was informed that the association in charge of maintaining the premises was named the Woodland Court Condo Association. Garant also hired a title examiner to search the Registry of Deeds for the name of the association. That search revealed that the name of the association was 18-20 Woodland Condo Association. Garant finally searched the Secretary of Commerce’s database for the name of the association and was unable to come up with a result matching her query.

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The Washington, D.C. judicial system is designed to handle all of the disputes arising in the District and, at times, can get fairly backed up. In particular, cases that end up going to trial take up a lot of a court’s resources. For this reason, courts implement certain rules to ensure that only meritorious cases end up going to trial. The most common method by which cases get weeded out prior to trial is through summary judgment.

GravelSummary judgment is a phase of the trial process in which a judge is asked by one party to enter judgment in favor of that party before the case gets presented to a jury. In Washington, D.C., in order for a judge to properly grant a party’s motion for summary judgement, the judge must determine that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”

Importantly, all reasonable inferences are resolved in favor of the non-moving party. This means that if a defendant moves for summary judgment, all matters of witness credibility and other potential unresolved inferences must be made in favor of the plaintiff. In other words, if the judge assumes everything the plaintiff claims is true, and the plaintiff is still not entitled to judgment, summary judgment in favor of the defendant should be granted. A recent premises liability case illustrates how summary judgment may be used by a defendant to get a case dismissed at an early stage.

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Earlier this month, a federal appellate court issued a written opinion in a product liability case filed by a man who was injured when the solution he was using to clean his basement floor erupted into flames. In the case, Suarez v. W.M. Barr & Company, the plaintiff brought both a failure-to-warn claim as well as a general negligence claim. The court affirmed the dismissal of the failure-to-warn claim but held that there was an issue of triable fact regarding the negligence claim.

BasementThe Facts of the Case

Suarez purchased a gallon of the defendant’s Goof Off product to clean his basement floors. Suarez read the warnings on the product’s packaging and accordingly opened doors and windows in the basement to ventilate the area. While following the packaging’s instructions, the product caught fire, severely burning Suarez. Suarez then filed a product liability lawsuit against the manufacturer of Goof Off. Specifically, he claimed that the warning on the product’s packaging was inadequate and also that the product was unreasonably dangerous.

Suarez presented experts who testified that the active ingredient in Goof Off, acetone, could have been agitated, causing the fire. However, the trial court granted the defendant’s motion for summary judgment on both claims, and Suarez appealed to a higher court.

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Earlier this month, an appellate court in North Dakota issued a written opinion affirming the dismissal of a plaintiff’s premises liability case against a city because the case was filed after the applicable statute of limitations. In the case of Frith v. City of Fargo, the court rejected the plaintiff’s argument that a longer statute of limitations should apply because the condition that caused her injury was created by a third party rather than the city named in the lawsuit.

Cracked PavementThe Facts of the Case

The plaintiff was injured in July 2012 while rollerblading in a park owned and operated by the City of Fargo. According to the court’s opinion, the plaintiff was injured when she tripped over a soft patch of pavement that had recently been placed to cover up a crack. The paving had been completed not by a city employee but by a third-party independent contractor.

The plaintiff filed a lawsuit against the city only. She claimed that the city’s negligence in failing to deal with the hazard caused her injuries. The lawsuit was within three years of the accident, but the plaintiff failed to properly serve the city, so the initial case was dismissed. The plaintiff then refiled the lawsuit and properly served the defendant in October 2015.

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Earlier this month, a federal appellate court issued a written opinion in a medical malpractice case, reversing the jury’s verdict in favor of the defendant and ordering the lower court to conduct a previously overlooked analysis. In the case, Hall v. Flannery, the court reversed the jury’s verdict based on the fact that the defendant’s expert witness did not possess the proper training and experience to offer expert testimony on the subject on which he testified.

Neck X-RayThe Facts of the Case

The plaintiff’s 17-year-old child passed away three days after having a surgery to repair a skull injury she sustained as a child. The exact circumstances of the girl’s death were uncertain. However, the medical examiner determined that a seizure was the likely cause of death. After her daughter’s death, the plaintiff filed a medical malpractice lawsuit against the doctor who performed the surgery, claiming that her daughter should have been prescribed anti-seizure medication prior to being discharged from the hospital.

The defendant notified the court that several expert witnesses would testify on his behalf. In response to the designation of the defendant’s witnesses, the plaintiff filed a motion asking the court to limit the experts’ testimony. Specifically, the plaintiff wanted to prevent the experts from testifying as to the cause of death. The plaintiff claimed that the experts did not have sufficient qualifications to make that determination.

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Earlier this month, an appellate court in Missouri issued a written opinion in a personal injury case brought by a man who was injured when he crashed and rolled his utility terrain vehicle (UTV), and the roof collapsed. In the case, Malashock v. Jamison, the court’s opinion analyzed the application of the “attorney work product” doctrine, which requires that an attorney’s work on a client’s case remain confidential unless the privilege is waived. Specifically, the court held that designating an expert witness and then choosing not to use the expert’s testimony does not waive the attorney work product privilege.

CourtroomThe Facts of the Case

Malashock crashed the UTV that he purchased from the defendant. During the crash, the UTV rolled, and the roof collapsed, injuring Malashock. Malashock then filed a personal injury lawsuit against the defendant, seeking compensation for his injuries.

In preparation for the case, Malashock designated four expert witnesses to help him prove his case against the defendant. As a part of the designation process, Malashock provided a brief description of the areas each expert would discuss at trial. However, two weeks later, he reconsidered and decided not to use one of the experts. At no time were the specifics of the unused expert’s testimony made known to the defendant.

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Earlier this month, an appellate court in Kentucky issued a written opinion in a premises liability case involving a man who slipped and fell while trying to get into the shower at the defendant hotel. In the case, Goodwin v. Al J. Schneider, the court held that the lower court erred in dismissing the plaintiff’s claim for his own failure to take reasonable precautions in entering the shower. Specifically, the state’s high court held that the lower courts mistakenly determined that the defendant did not have a duty to protect Goodwin.

BathroomThe Facts of the Case

Goodwin and his wife were staying at the defendant hotel for a conference. On the second day of his stay, Goodwin fell while he was entering the shower. Evidence presented at trial showed that the bathroom did have a hand rail to assist guests in entering the shower, but it did not have a bath mat. However, other rooms in the hotel had both a bath mat and a hand rail. Goodwin filed a premises liability lawsuit against the hotel, seeking compensation for the injuries he sustained in the fall. He claimed that the hotel should have provided additional protection and that the hotel’s failure to do so was negligent.

The trial court hearing the case granted the defendant’s motion for summary judgement, stating that the hotel did not have a duty to provide bath mats in all rooms and that the hotel is not “an insurer of a guest’s safety.” The court reasoned that a wet shower is an “open and obvious” hazard, and the defendant did not have a duty to remedy the hazard. The court of appeals affirmed.

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