Washington DC Injury Lawyer Blog

Filing Suit Against the District of Columbia in a Washington, D.C. Injury Case

November 11, 2020 | Lebowitz & Mzhen

If an individual is injured in the District of Columbia and the local government may be at fault, a plaintiff will likely have to deal with the issue of governmental immunity. Under Washington, D.C. law, the municipal government may be immune from a civil lawsuit depending on the nature of the act.

Are Government Employees Immune from Personal Injury Liability?

In Washington, D.C., the local government and its employees and agents are immune from suit depending on whether the act is discretionary or ministerial. The government is immune based upon its discretionary actions, but not immune from suit based upon its ministerial actions. Generally, a discretionary act is one that involved deliberation, decision, and judgment. A ministerial act is generally confined to following orders or performing a duty in which the employee has little choice. Whether an action is discretionary or ministerial often depends on the specific facts and circumstances of the case.Local government employees also generally are protected under governmental immunity for their actions. They generally are protected as long as they are acting within their official capacity and within the scope of their employment and if they do not act with gross negligence. An individual may also act as an agent of a government entity, depending on the facts of the case.

Court Dismisses Medical Malpractice Suit Against University Based on Immunity

In a recent case before one state appeals court, that court considered whether a university was entitled to immunity after a doctor was sued at an affiliated hospital. In that case, the patient sought treatment from the doctor at his office at the hospital. The university provided healthcare services at that teaching hospital. The doctor was an employee of the university and made an agreement to provide care to patients at the hospital. The patient claimed that the doctor failed to prescribe anti-coagulants to the patient, which resulted in disabilities. The patient claimed that the hospital and the university were liable for the doctor’s actions as an agent of the university.

The Test for Proving Defective Design Under Washington, D.C. Law

November 4, 2020 | Lebowitz & Mzhen

In a Washington, D.C. product liability case, a plaintiff must prove that a defendant is responsible for harm to the plaintiff caused by the defendant’s product. Different parties in the chain of production may be liable for a harmful product, including a manufacturer and a retail store owner. A products liability case is based on strict liability, meaning that the defendant is strictly liable as long as there is a defect. In a Washington, D.C. strict liability case, a plaintiff has to show: that the seller engaged in the business of selling the product at issue; that the product was defective and unreasonably dangerous when it was sold to the consumer; that the seller expected to reach and the product reached the consumer without any substantial change in the product’s condition; and that the defect directly and proximately caused the plaintiff’s injuries.

How Do Courts Determine if a Product Was Defective?

In general, there are two tests often used to determine if a product’s design was defective. The first is the consumer-expectations test. Under the consumer-expectations test, the relevant question is whether a product failed to perform in the manner that the ordinary consumer would reasonably expect when used in an intended or reasonably foreseeable manner. The second test is the risk-utility test. Under the risk-utility test, the question is whether the product’s inherent risk of harm outweighed the product’s utility. Potentially, either the consumer-expectation test or the risk-utility test may apply in a Washington, D.C. injury case, depending on the facts of the case.

The Impact of a Plaintiff’s Partial Fault in a Washington, D.C. Personal Injury Case

October 28, 2020 | Lebowitz & Mzhen

In cases where it is difficult to determine who was to blame for an accident, the plaintiff’s role in the accident may be central to the case. This is because under Washington, D.C. law, according to the doctrine of contributory negligence, the plaintiff can be barred from recovery even if the plaintiff was only partially at fault for their own injuries. An example of a recent Washington, D.C. tragic car accident involving a potentially complicated legal scenario was reported on by one news source. According to the report, a man was tragically killed on a recent Sunday morning while he was putting gas in his car on the shoulder of the Baltimore-Washington Parkway. The crash occurred around three o’clock in the morning. The man died on the scene and the crash is still being investigated.

How Do Courts Determine Liability After a Washington, D.C Car Accident?

Liability in a crash like this can be tricky to sort out. Failing to notice or avoid a person standing on the shoulder of the highway indicates some liability on the part of the driver. However, if the victim was filling up his car in a poorly lit area, perhaps in a location that was hard to see from far away, he may have had some fault in causing the accident as well. In a car accident case involving the violation of a traffic regulation, there is a presumption of negligence for a violation, which can be rebutted by showing that the person did everything that a reasonable person who tried to follow the law would do.

The Importance of the Distinction Between an Independent Contractor and an Employee in a Washington, D.C. Personal Injury Case

October 23, 2020 | Lebowitz & Mzhen

The difference between an independent contractor and an employee is an important distinction in Washington, D.C. personal injury cases because an injured person’s ability to recover may be limited based on the negligent actor’s status. The following case shows how the plaintiff’s ability to recover compensation from his employer was limited by the wrongful actor’s status as an independent contractor.

In that case, the plaintiff claimed that the defendant’s negligence was the proximate cause of injuries he suffered while working on his property. According to the record in the case, the defendant owned and operated a construction business, and the plaintiff was an employee of the defendant’s company. The defendant sometimes offered employees work at his home outside of normal work hours. One day, the plaintiff and his coworker went to do maintenance work, and among their tasks, they were told to burn the brush in the yard. The plaintiff attempted to do so by standing on top of a large pile of logs and throwing gasoline on the brush. The brush “blew up,” causing him to fall back and burning his skin with severe burns.

The plaintiff claimed that the defendant was liable because he failed to supervise the burning of the brush, he had gasoline available to use, he did not train the plaintiff on how to properly use the gasoline, and he did not train his coworker on how to properly use the gasoline or supervise others properly. He also claimed the defendant was responsible for his coworker’s negligence acts under respondeat superior. The defendant argued he was not liable for any of the coworker’s acts because he was an independent contractor rather than an employee.

Washington, D.C. Residents Involved in Car Accidents May Be Denied Insurance Coverage Due To Strict Notice Provisions

October 14, 2020 | Lebowitz & Mzhen

Purchasing car insurance is a good idea for all Washington, D.C. residents who drive—whether it be to work every day or just for errands occasionally. Whilst most car trips conclude without incident, Washington, D.C. car accidents do occur every day and can cause severe injuries in the blink of an eye. If a Washington, D.C. resident is involved in a car accident, they may rely on their insurance to cover the resulting costs, to ensure that they do not go into debt as a result.

However, it is important for all Washington, D.C. drivers to remember that having insurance does not necessarily mean you are covered in all circumstances, no matter what. Some insurance policies may have specific rules or procedures that drivers must follow if they hope to collect under their policy. For instance, some have “notice provisions,” which require a driver to notify the insurance company about an accident and resulting injuries and treatment to recover under the policy.

A recent state appellate court case, resulting from a car accident, provides an example of how these notice provisions work. According to the court’s written opinion, the accident occurred in August 2016, when the plaintiff was rear-ended while stopped at an intersection. After the collision, the plaintiff went that same day to a doctor’s office. The doctor examined her and x-rayed her neck, and then told her that she had whiplash. Almost two years later, in March of 2018, the plaintiff had surgery on her neck. At the time of the accident, the plaintiff was insured by the defendant in the case, a well-known insurance company. Her policy stated that, to make the specific type of claim involved in this case, she must notify the insurance company of the claim and give them all of the details about the death, injury, treatment, and other information the company may need as soon as reasonably possible. The policy then stated that legal action could not be taken against the defendant insurance company unless the insured complied with the policy’s provisions.

Uninsured and Underinsured Motorist Claims in Washington, D.C.

October 6, 2020 | Lebowitz & Mzhen

Although drivers are required to have insurance, there are drivers on the road without adequate coverage or without insurance at all. However, in the event of a Washington, D.C. car accident with an uninsured or underinsured driver, an accident victim may be able to seek compensation through their own insurance policy by filing a claim for uninsured or underinsured motorist benefits.

Washington, D.C. law requires that insurance companies offer uninsured motorist coverage to drivers. Uninsured and underinsured motorist coverage protects insured motorists if the insured is involved in a Washington, D.C. car accident with another driver who is uninsured or underinsured. Uninsured motorist coverage refers to coverage after an insured is involved in an accident with a driver that does not have any motor vehicle liability insurance. Underinsured motorist coverage refers to coverage after an insured is involved in an accident with a driver that has liability insurance but whose coverage is less than the insured’s underinsured motorist coverage. The limits of coverage generally depend on the language in the insurance policy, as in the case below.

Driver Obtains Uninsured Motorist Benefits After Crash with ATV

The Importance of Constructive Notice in Washington, D.C. Slip and Fall Accident Cases

September 28, 2020 | Lebowitz & Mzhen

When someone is injured while on someone else’s property, they may be able to file what is called a Washington, D.C. premises liability lawsuit. Property owners generally have to maintain their premises safe for others—especially those that they explicitly invite onto their property. For example, grocery stores generally have to ensure that their store is safe to shop in, and hotel owners have to make sure their rooms are safe. If a property owner learns about a hazard on their property—a wet floor, for example, or a malfunctioning device that could cause harm—they have to take reasonable steps to fix it and/or warn others of the danger. However, property owners cannot be on the hook for everything on their property—if a hazardous condition arises that they have no constructive notice about—they don’t know about it nor do they have reason to know—they may be able to escape liability if it harms someone.

For example, take a recent slip and fall case. According to the court’s written opinion, the plaintiff spent his day drinking beer and fixing cars at his auto repair shop. That evening, he went to a craft brewery and continued to drink. At some point during the night, he entered the brewery’s restroom and slipped on a wet surface, falling and causing serious back injuries. He then sued the brewery for negligence, and the brewery filed for summary judgment.

The court found that the plaintiff could not recover in this case, because he could not prove how long the alleged wet substance was present on the floor before he slipped. Thus, there was no proof that the brewery had constructive notice of the wet floor—a hazardous condition—and thus they could not be held liable. It would be different if, for instance, there was proof that an employee had seen the wet floor and decided not to fix it, or not to put up a wet floor sign. In that hypothetical, it could be established that the defendant knew about the issue. As it stood, however, the plaintiff could not recover.

What Happens When a Party Destroys or Loses Evidence in a Washington, D.C. Personal Injury Claim?

September 21, 2020 | Lebowitz & Mzhen

In an Washington, D.C. premises liability case, a party must preserve evidence relevant to a claim. Under Washington, D.C. personal injury law, if a party acts in bad faith to destroy a relevant document the party may be liable for spoliation and there will be a strong inference that the document was unfavorable to that party. The court and the jury can consider this inference in deciding the case. If a party fails to preserve evidence but the party did not act intentionally or recklessly, the fact-finder may still draw an inference adverse to the party that failed to preserve the evidence.

To establish a claim of spoliation under Washington, D.C. law, a party must prove: (1) a potential civil action exists; (2) the offending party had a legal or contractual duty to preserve evidence relevant to the claim; (3) the defendant destroyed evidence; (4) the destruction significantly impaired the injured party’s ability to prove the claim; (5) there is a proximate relationship between the impairment and the absence of the destroyed evidence; (6) there is a significant possibility that the claim would succeed if the evidence were available; and (7) damages adjusted for the estimated likelihood of success.

In a recent case before a state appellate court, the court denied a motion for spoliation in a case involving a child that was injured on a playground at a Chick-Fil-A restaurant. In that case, the child had removed his shoes as instructed by a sign at the playground and was playing barefoot on the playground on a hot day when he badly burned the bottoms of his feet. The child’s parents sued the restaurant, arguing that their child was injured by a hazardous condition on the restaurant’s playground. They alleged that the hazardous condition was the use of a sanitizer on the playground that day.

Washington, D.C. Premises Liability Cases: What Makes a Danger Open and Obvious?

September 15, 2020 | Lebowitz & Mzhen

When someone slips and falls in public, they may be embarrassed and assume that their fall was 100% their fault. However, it is important for Washington, D.C. residents to remember that there are often times where a property owner is responsible for allowing a hazardous situation on their property—a situation that causes people to slip and fall. In fact, those injured in these types of accidents may even be able to bring a personal injury lawsuit against a property owner to claim monetary damages, which can cover past and future medical expenses, pain and suffering, and lost wages incurred due to the accident.

To be successful in a Washington, D.C. premises liability lawsuit, a plaintiff typically must prove that the hazardous situation that caused them to slip was not “open and obvious.” For example, if there were a large hole in a parking lot, but the hole is large, obvious, and roped off, then it is likely an open and obvious hazard, and someone who falls in may not be able to successfully recover.

Often, parties in these lawsuits will disagree about what constitutes an open and obvious danger. Take a recent state appellate case, for example. According to the court’s written opinion, the plaintiff was taking her children to get ice cream when she tripped on a small hole in the pavement outside the ice cream shop. She sued the property owners, but the defendants argued they could not be held liable because the small hole was open and obvious. The trial court agreed and granted judgment to the defendants without even allowing it to get to a jury, but the case was appealed.

Can Washington, D.C. Courts Reduce a Jury’s Award to a Plaintiff in a Personal Injury Lawsuit?

September 8, 2020 | Lebowitz & Mzhen

When someone is injured in a Washington, D.C. accident, the law allows them to file a personal injury lawsuit against the party responsible for their injuries. These lawsuits can provide injured plaintiffs with financial compensation for their injuries, including money to cover their medical expenses. However, courts across the country have struggled with how to calculate the amount owed in medical expenses in situations where the total cost is much larger than what the plaintiff has actually paid, due to health insurance. In some cases, courts have even reduced plaintiffs’ awards, granted to them by a jury, meaning the plaintiff is given less than a jury of their peers decided they were owed.

For example, take a recent premises liability case arising out of a slip and fall accident on a cruise ship. According to the court’s written opinion, the plaintiff in the case was on a cruise with her family and eating at the ship’s breakfast buffet when she tripped over a cleaning bucket and fell to the floor, sustaining injuries to her shoulder and fracturing her humerus. Since the incident, the plaintiff has been to many doctor’s appointments, physical therapists, and specialists to deal with her injuries.

The plaintiff filed a lawsuit against the cruise company, alleging negligence in leaving the cleaning bucket in a highly trafficked area around the breakfast buffet. After trial, the jury returned a verdict for the plaintiff and awarded her over $1 million in damages, including $61,000 to cover past medical expenses. This award for medical expenses roughly matched the amount billed by the plaintiff’s healthcare providers. However, the district court reduced this part of the jury award to $16,326 because that was the amount that the plaintiff and her insurer actually paid. The plaintiff appealed this reduction.