Personal Injury Case Law

Constructive Notice in Washington, D.C. Slip and Fall Cases

March 27, 2020 | Lebowitz & Mzhen

Business owners generally have a duty to protect customers from known hazards under Washington, D.C. law. To prove a dangerous condition existed in a Washington, D.C. premises liability case, a plaintiff must show that the defendant either had actual notice or constructive notice of the hazardous condition. To prove constructive notice, a plaintiff has to show the condition existed for long enough that the defendant should have known of the condition and corrected it in the exercise of reasonable care. The duration of the hazard is an important factor, and the evidence in support of constructive notice often includes evidence of how long the hazard existed. Other evidence may include, for example, the frequency that a defendant inspects for hazards. However, whether notice is sufficient to amount to constructive notice depends on the facts of the particular case.

In a recent case before a state appellate court, the court considered whether a store may have had constructive notice of a puddle of water on the floor before the plaintiff slipped and fell in it. In that case, the plaintiff slipped and fell on the puddle of water at a supermarket. The plaintiff claimed that the plaintiff was negligent because of the existence of the dangerous condition. In the course of discovery in the case, the plaintiff’s sister was deposed, who was there when the plaintiff fell. In the sister’s deposition, the sister was asked only about where the water came from and whether the puddle appeared transparent. She stated that she did not know where the water came from and believed the water was clear.

After the defendant filed for summary judgment, the plaintiff submitted an affidavit from her sister. In the affidavit, the plaintiff’s sister stated that shortly after the plaintiff fell, she saw a pool of water on the ground near a cooler. She explained the puddle was elongated and appeared to have been stepped in by multiple people because there were track marks or footprints to and from the puddle. The store argued that the affidavit should have been stricken from the record, because the affidavit repudiated the sister’s deposition testimony.

Proving a Defendant’s Knowledge of a Hazard in a Washington, D.C. Slip and Fall Lawsuit

March 5, 2020 | Lebowitz & Mzhen

In a Maryland slip and fall case, a plaintiff has the burden of proving several elements before they are entitled to recover for their injuries. Maryland slip and fall victims must prove that a dangerous condition existed, that the defendant had actual or constructive knowledge of the hazardous condition, and that the defendant had knowledge in enough time for the opportunity to remove the condition or to warn the plaintiff. This means that a plaintiff generally has the burden of proving what the defendant actually knew — or what the defendant should have known, given the surrounding circumstances. Thus, the knowledge requirement can be broken down into actual knowledge and constructive knowledge.

If a plaintiff claims the defendant had constructive knowledge, they must show how long the dangerous condition was present before their fall. If a plaintiff fails to prove that the defendant created or knew of the dangerous condition, or that it existed long enough so that the defendant should have known about it, the defendant is entitled to summary judgment.

In a recent appellate opinion, the court dismissed a slip and fall case against a grocery store after a woman slipped and fell while shopping. The woman claimed that she fell on a liquid on the floor while she was at the store that appeared to be from a squished grape. The store argued that there was no evidence that the store had actual or constructive knowledge that there was any liquid on the floor. The woman claimed that there was a dispute over whether the liquid was on the floor long enough that the store should have been aware of the substance.

Small Mistakes Can Have Large Impacts in Washington, D.C. Personal Injury Cases

February 25, 2020 | Lebowitz & Mzhen

Filing a personal injury case in Washington, D.C. is a complicated process, governed by strict and numerous rules. Even the most meritorious claim can be defeated solely due to a failure to abide by a particular rule, such as filing after the statute of limitations has expired or improperly pleading a case. While some plaintiffs may be able to successfully navigate these rules themselves, the likelihood of a mistake is much higher when a suit is filed without the assistance of an attorney.

Small mistakes in these cases can change the entire outcome of the suit. For example, a state supreme court recently considered a personal injury case resulting from a car accident, where the plaintiff, a world-ranked collegiate athlete, was injured, allegedly leading to hip surgery years later and negatively impacting his personal life and athletic career. The defendant acknowledged fault for the accident, although disputed the plaintiff’s expert witness’s testimony as to the extent of the harm and the amount of damage caused.

On the last day that the parties were allowed to submit expert witnesses, the plaintiff submitted a new expert who would testify as to the plaintiff’s future lost wages and earnings as a result of the accident. The defendant, in response, was a week late in identifying a rebuttal witness, having missed the deadline supplied by the court. The trial court thus excluded the rebuttal witness’s testimony. At trial, the plaintiff’s expert provided extensive and unrebutted testimony to support the claim for future lost wages and earnings, and the jury ultimately awarded $2 million to the plaintiff. The defendant appealed to the court of appeals, who affirmed the decision to exclude the evidence, and the case was finally brought to the state supreme court.

The “Hazardous Condition” Requirement in Washington, D.C. Slip and Fall Claims

February 19, 2020 | Lebowitz & Mzhen

When someone slips and falls in Washington, D.C., they may believe that they are the only ones at fault for their accident and resulting injuries. They may be embarrassed to tell anyone, or to complain about a hazardous condition that caused them to fall. But Washington, D.C. law protects plaintiffs who fall under these circumstances by allowing them to file a civil negligence suit against a property owner if they are negligent or reckless in maintaining their property. This is true for landlords who own commercial apartment complexes or business owners maintaining a shop for the public. While not liable in every situation where someone is harmed on their property, these individuals have a duty to ensure that dangerous conditions are remedied or handled in such a way as to minimize the chance of injury.

Nevertheless, Washington, D.C. plaintiffs should be aware that not every injury on a property is the fault of the owners. There are many cases where a court may determine that the condition that caused the fall was “open and obvious,” such that the plaintiff should have reasonably seen it and avoided it. For example, a state supreme court recently held that a plaintiff was not entitled to relief when they tripped over a yellow speed bump in the defendant’s parking lot. According to the court’s written opinion, the plaintiff admitted she saw numerous yellow lines on the parking lot and that, since she had been in that parking lot many times, she must have previously noticed the speed bumps. The trial court entered judgment in favor of the defendants, finding that the plaintiff had not provided evidence that there was a hazardous condition in the parking lot, a requirement for her claim to succeed. The plaintiff appealed.

On appeal, the plaintiff argued that a speed bump is inherently dangerous and is only considered “open and obvious” if it is properly designed and maintained and it is marked with signs warning the public about its existence. According to the plaintiff, the speed bump was not properly designed because it was the same color as the lines marking individual parking spaces, and there were no warning signs. The court, however, disagreed, finding that the speed bump was open and obvious and the plaintiff could have reasonably been expected to be aware of its existence and avoid tripping over it. Ultimately, the court did not find any evidence suggesting that the bump constituted a dangerous condition under the meaning of the law, and the plaintiff’s suit was dismissed.

Expert Testimony in Washington, D.C. Product Liability Cases

February 11, 2020 | Lebowitz & Mzhen

When someone is injured in a Washington, D.C. accident, the law allows them to file a civil suit against the responsible party to recover monetary damages for their injuries. Generally, this process requires proving four things. First, that the defendant owed a duty of care to the plaintiff. Second, that the defendant breached that duty through some act or omission. Third, the plaintiff’s injuries were caused by the defendant’s breach. Lastly, the plaintiff suffered actual damages. Failure to prove one of these elements can be fatal to a plaintiff’s claim. In Washington, D.C. personal injury lawsuits, plaintiffs may bring in expert witnesses to help prove these elements; expert witnesses can help explain how an accident happened or the extent of the resulting injuries to the court.

While expert witnesses can be extremely helpful for plaintiffs, there are certain situations where expert witnesses can be used by the defense against the plaintiff. Defendants can also call expert witnesses who may provide testimony stating that a plaintiff’s claim is false. This can damage the plaintiff’s claim, sometimes even ending it altogether; if a defendant has a reliable expert witness and a plaintiff has none, the plaintiff might automatically lose.

Take, for example a recent state appellate case against Johnson & Johnson. According to the court’s written opinion, the plaintiff used Johnson & Johnson talc-based products—specifically Shower to Shower and Baby Powder—regularly for years. In 2016, she was diagnosed with malignant mesothelioma, and filed suit against Johnson & Johnson and their talc supplier, alleging that the company’s Shower to Shower and Baby Powder contained asbestos, causing her illness. In response, Johnson & Johnson produced the testimony of an expert witness, a geology Ph.D. specializing in characterizing asbestos in raw materials and the development of asbestos analytical methods. Based on his specialized knowledge and a review of various governmental and academic studies, the expert concluded that the talc sourced from the specific mines providing for the two products was asbestos-free.

Landlord Liability in Washington, D.C. Rental Home and Apartment Accidents

February 4, 2020 | Lebowitz & Mzhen

As more and more Washington, D.C. residents live in apartments, issues of landlord liability for injuries suffered on the property is of increasing importance. All residents expect to be safe when they are at home and may not worry as much about accidents in their living spaces as they do out in public. But a recent report out of New York City highlights that accidents can truly happen anywhere—including in individuals’ apartments—and how injured plaintiffs can recover against their landlords in some cases.

According to a major news source covering the New York incident, a landlord in the East Village decided to save some money and install a faulty gas system, rather than spending more money to ensure the system was safe. In 2015, the gas line caused an explosion on the landlord’s property, resulting in the tragic death of two men. In addition, the blast destroyed two buildings and injured over 12 other people.

Instances like the tragic story above are fortunately rare, but injuries caused by landlords’ negligence are not. While typically on a smaller scale than the large gas explosion, Washington, D.C. residents may be injured in or around their apartments from a variety of things, such as tripping over built-up garbage and litter on the walkways or stepping through a faulty stair. What many D.C. residents might not realize is that their landlord may be held liable for their injuries in these cases.

Washington, D.C. Criminal Cases May Lead to Civil Personal Injury Cases

January 15, 2020 | Lebowitz & Mzhen

The difference between civil law and criminal law is important to understand. While both generally try to protect individuals from harm and deal with harm once it has occurred, they do so in very different ways. Criminal law deals with punishment of criminal offenses, such as murder, burglary, or assault. A defendant in a criminal law case, if found guilty, may be subject to incarceration. On the other hand, civil law deals with disputes between two different parties, usually issues of negligence. For example, medical malpractice, slip and falls, and car accident claims may all be brought in civil court. While civil law can hold a defendant responsible for monetary damages, a defendant cannot be sent to jail in a civil trial. However, it is important for Washington, D.C. residents to understand that, despite the distinction between these two areas of law, one incident or accident can lead to both a civil and criminal trial.

When someone is injured by a criminal act, such as an assault, there is typically a criminal investigation. Many victims make the mistake of thinking that the criminal investigation is the only possible response in that situation. In fact, in many of these situations, a plaintiff can also bring an individual civil suit against the person who harmed them or another responsible party. For example, if someone is hit and killed by a drunk driver, there will likely be a criminal investigation and the driver may be charged with manslaughter. However, regardless of how the criminal trial goes, the victim’s family can also bring a negligence action against the intoxicated driver to recover for pain and suffering, medical bills, lost wages, funeral expenses, and more. Unlike a criminal trial, this civil trial can provide monetary compensation directly to those individuals most impacted and harmed by the accident.

Sometimes, the civil suit can be brought not against the alleged “criminal” but another party. This is most common in premise liability cases. In Washington, D.C., property owners are responsible for taking reasonable precautions to protect those they invite onto their property. Failure to do so can result in liability. For example, a recent state appellate case considered the wrongful death of an apartment complex’s resident. The resident was headed to work when he was robbed and shot, ultimately dying from the gunshot wound. While a criminal case was opened against the men who shot him, the victim’s family also brought a civil case against the apartment complex owner. In some cases, an apartment complex can be found negligent for not doing more to protect its residents from crime. Failure to install security cameras or patrol known dangerous areas can be evidence of negligence in this type of case. Thus, Washington D.C. plaintiffs should keep in mind that events leading to a criminal case may also lead to a civil case, allowing them to recover for the injuries suffered.

Determining the Scope of Liability in a Washington, D.C. Medical Malpractice Case

December 21, 2019 | Lebowitz & Mzhen

Vicarious liability is a legal concept that acts to hold a principal liable for the actions of an agent. Under Washington, D.C. law, an employer can be held liable for the legally careless actions of an employee in a medical malpractice case, even if the employer itself did not commit any legally careless actions. Vicarious liability is based on a relationship between the parties. As a matter of policy, employers are held responsible in part because they are often better situated to provide financial compensation to victims.

In a recent case before one state supreme court, the court considered whether a hospital could still be held liable after a surgeon entered into a settlement agreement with the plaintiff. In that case, a woman’s daughter filed a lawsuit after her mother died two days after undergoing surgery at a hospital. The woman’s daughter sued the hospital and two surgeons. One of the surgeons subsequently entered into a settlement with the plaintiff. As part of the settlement, the plaintiff signed a release, which released the doctor from all claims. The hospital was not involved in the settlement agreement. However, the hospital subsequently filed a motion for partial summary judgment, arguing that the release of the doctor released the hospital from vicarious liability for that doctor’s alleged negligence.

In that case, the state’s supreme court found that the release signed by the doctor also released the hospital from its vicarious liability arising from that doctor’s alleged negligence. The court reasoned that the purpose of the release in part was to reduce the plaintiff’s claims against other parties, so it served to extinguish the plaintiff’s claim against the hospital. It found that the release functioned to fully satisfy the plaintiff’s claims against the hospital.

Washington, D.C. Laws May Make it More Difficult for Plaintiffs to Recover in Medical Malpractice Suits

November 26, 2019 | Lebowitz & Mzhen

When an individual ends up in a hospital, they expect that the nurses and doctors will take care of them and make sure they are safe. Because of the level of trust given to health care professionals, and the stakes at issue, Washington, D.C. (the District) medical malpractice cases can be extremely traumatic. Unfortunately, however, doctors and nurses can and do make mistakes. Generally, Washington, D.C. law allows victims to sue when they are injured as a result of those mistakes.

However, some laws in the District may prevent a plaintiff from recovering anything against their medical provider, even if they were injured as a result of the provider’s negligence. For instance, Washington, D.C. residents should be aware of the District’s harsh contributory negligence rules, which will bar a plaintiff from recovering anything for his damages if the court finds he was at all responsible for his injury. This applies in situations where a plaintiff is found to be just 5 percent responsible. In some unusual cases, a plaintiff who brings suit against a medical provider and is found partially accountable may even end up owing the medical providers money for legal fees.

Additionally, plaintiffs may find themselves unable to recover if they decide to leave the hospital against medical advice (AMA). Typically, in these cases, the hospital will ask the patient to sign a form indicating that they are leaving AMA, that they assume all of the risks of doing so, and that they release the hospital and medical staff of all liability. Sometimes patients won’t even read this form thoroughly, but signing it can preclude a plaintiff from successfully bringing a suit later on. For instance, in a recent state appellate opinion, the court dismissed a plaintiff’s lawsuit against her doctor because she signed an AMA form.

Are Contracts that Limit a Washington, D.C. Statute of Limitations Enforceable?

November 12, 2019 | Lebowitz & Mzhen

A statute of limitations refers to the time period in which a lawsuit must be filed. Knowing the relevant statute of limitations is essential, and it varies depending on the type of claim and where the claim is filed. The general statute of limitations for Washington, D.C. personal injury lawsuits is three years, as explained in D.C. Code § 12-301. However, some types of claims have shorter or longer statute of limitations. For example, the statute of limitations for wrongful death claims is two years. In comparison, Maryland has a three-year statute of limitations for personal injury claims and wrongful death claims.

Failing to file within the applicable statute of limitations will likely result in a dismissal of the claim, regardless of the merits of the claim. In some cases, the statute of limitations can be tolled. In other cases, the statute of limitations may be shortened based on an otherwise-agreed upon limitation. In a recent case before one state’s supreme court, the court considered whether a statute of limitations still applied despite a shortened limitation period agreed upon in a contract.

In that case, a tenant fell in the common area of her apartment complex. She later filed a claim against the apartment complex, alleging negligence and negligence per se, claiming that the complex failed to repair a crumbling curb, despite being aware of its condition. The complex claimed that the claim was barred by a limitations period that was included in her lease. The tenant filed the lawsuit exactly two years after her injury, and the claim normally would have been subject to a two-year statute of limitations. However, the woman’s lease contained a clause which stated that any legal claim against the complex was required to be filed within one year.