Washington DC Injury Lawyer Blog

D.C. Court Finds Improper Negligence Per Se Jury Instruction Harmless, Affirms Verdict

May 6, 2014 | Lebowitz & Mzhen

Generally, a personal injury plaintiff must prove four elements to prevail in a negligence claim: duty, breach of duty, causation, and damages. However, in some cases, plaintiffs can take a “short cut” under the legal theory of “negligence per se.” Negligence per se is a Latin term that means negligence in and of itself. Under Washington D.C. law, negligence per se is applicable “where a particular statutory or regulatory standard is enacted to … prevent the type of accident that occurred.” Further, an “unexplained violation of that standard renders the defendant negligent as a matter of law.”

This means that the plaintiff must prove only that the statute was designed to protect against the type of harm caused in the accident, and that the defendant was the person or entity that engaged in the conduct. Therefore, when the facts of the case allow it, a plaintiff will almost always want to instruct the jury on negligence per se because it makes the plaintiff’s burden that much easier to meet.

For that reason, when a court erroneous instructs a jury on negligence per se, the defendant may have an issue on appeal because of the harm caused by the instruction. However, a recent D.C. Court of Appeals case held that an improper negligence per se instruction can be “redundant” rather than harmful in some cases, and does not always require reversal.

GM Recalls Allegedly Defective Cars, Faces Tough Questions of Liability

April 30, 2014 | Lebowitz & Mzhen

A defective ignition switch in cars manufactured by General Motors (GM) has been linked to at least thirteen deaths over the past decade, and the company has recalled millions of vehicles during the first few months of 2014. The CEO of GM has been called to testify before Congress, and various public figures have called for investigations and prosecutions. Several lawsuits have been filed, including an emergency motion seeking to speed up the recall process. Individuals who have already settled with GM are reportedly considering seeking to overturn their settlement agreements.

A component of the ignition switch in many GM cars is at the center of the problem. The defective part, called a switch indent plunger, keeps pressure of the ignition switch to keep it from turning off while the car is in motion. Shutting off the ignition disables anti-lock brakes, airbags, power steering, and all other electrical components, which can be disastrous while a car is in motion. The part was not able to apply enough torque to keep the ignition from turning off if the ignition key had too much weight on it, such as if the driver had numerous other keys on a keychain. Ignition shut-offs because of this defect have resulted in multiple crashes and at least thirteen fatalities.

GM began recalling Cobalts, Ions, and other small-model cars in February 2014. The company reportedly notified its dealers about the defect in 2005. The recall affects more than 2.5 million vehicles. The company maintains that recalled vehicles are safe if the driver removes everything else from the keyring with the ignition key, minimizing the pressure on the ignition switch.

Investigations, Lawsuits Target Alleged Abuse by Border Patrol Agents

April 23, 2014 | Lebowitz & Mzhen

A series of investigations and lawsuits seek to shed light on shootings by agents of U.S. Customs and Border Protection (CBP), the agency which includes the U.S. Border Patrol (BP), involving Mexican nationals located across the border on Mexican territory. Asserting civil claims over these incidents has proven difficult, both practically and legally. The CBP and related agencies suffer from a lack of transparency, which makes the discovery process difficult. Courts have been reluctant to exercise jurisdiction over claims by foreign nationals, raising questions about jurisdiction and rights when an agent fires a gun on one side of an international border, and the injury occurs on the other side.

According to the Arizona Republic, BP and CBP agents have been involved in at least forty-two fatal uses of force since 2005. Thirty-eight of those deaths occurred near the U.S.-Mexico border. The Republic describes them as varying from “strongly justifiable to highly questionable.” Four BP agents have died in “direct conflicts with aggressors” in roughly the same timeframe.

Jose Antonio Elena Rodriguez, age sixteen, was shot and killed by BP agents on October 10, 2012. The agents were located in Nogales, Arizona, while Rodriguez was in the Mexican town of the same name. The agents claimed that Rodriguez was throwing rocks at them. Agents are permitted to use deadly force in response to threats, and they treat rocks as a deadly weapon as a matter of policy.

Family of Woman Found Dead in Hospital Stairwell Files Notice of Legal Claim with City

April 16, 2014 | Lebowitz & Mzhen

The family of a woman whose body was found in the stairwell of a San Francisco hospital weeks after she went missing from her hospital bed has filed a legal claim with the city, indicating their intention to file a lawsuit. The claim is a mandatory prerequisite to a lawsuit against city and county agencies. The family’s claim alleges medical malpractice, negligence, dangerous property conditions, and violations of the state elder abuse and adult dependency statute. Hospital workers have accused the hospital of serious understaffing, to the point that it compromises patient safety. The hospital has announced two rounds of changes to its security procedures as a result of the incident, including access controls, patient checks, and a missing patient policy.

The decedent, 57 year-old Lynn Spalding Ford, checked into San Francisco General Hospital on September 19, 2013. On September 21, a hospital worker reported her missing. The worker allegedly described Spalding, who is white, as a black woman, and some hospital paperwork described her as Asian. The San Francisco Sheriff’s Department (SFSD), which handles hospital security, searched the hospital perimeter but did not classify Spalding as missing. Surveillance footage was not available to authorities until October 4. The hospital did not ask SFSD to search the entire 24-acre hospital campus until September 30, after Spalding had been missing for nine days. The search did not include all of the stairwells.

On October 4, a hospital employee reported a person lying on the 3rd- or 4th-floor stairwell of Stairwell 8. A fifth-floor employee reported hearing banging from Stairwell 8 the same day. There is no indication that anyone searched that stairwell in response to these reports. An employee with the hospital’s engineering department finally found Spalding’s body during a routine check of an exterior stairwell on October 8. Spalding had been missing for seventeen days. Both the hospital and SFSD said that the stairwell is alarmed, only exits to the first floor, and is only used as a fire exit. The medical examiner listed her cause of death as dehydration and alcoholism complications, but could not say for certain when she died.

Shoes at the Center of a Product Safety Recall and a Products Liability Lawsuit

April 9, 2014 | Lebowitz & Mzhen

The law of products liability enables consumers to recover damages if they suffer injury because of a design or manufacturing defect, a failure to provide adequate instructions for using a product, or a failure to warn of a known risk associated with a product. Agencies like the U.S. Consumer Product Safety Commission (CPSC) work to protect the public from dangerous or defective products by encouraging or ordering recalls before they cause excessive damage. Consumers also have the right to sue for damages on their own behalf. Two recent items in the news illustrate these two approaches, and both of them involve shoes.

The CPSC announced on February 20, 2014 that Eastman Footwear is recalling 12,200 units of Coleman Runestone Style children’s shoes sold at Big Five Sporting Goods stores during the calendar year 2013. The reason for the recall is described by the CPSC as a “laceration hazard” associated with metal rivets surrounding the shoestring holes. The CPSC received a single report “of an adult who scratched or cut his finger, but did not require further medical attention.

A nationwide recall might seem like overkill, based on the available facts, but it was undertaken voluntarily by the manufacturer. Sometimes caution, in this case a recall, is a better strategy than risking additional, possibly more-severe injuries. Now that the CPSC has announced the recall, consumers are advised to stop using the product, and resale of any units subject to the recall is illegal.

New Federal Regulations Will Require Backup Cameras in All Motor Vehicles Within Four Years

March 26, 2014 | Lebowitz & Mzhen

The National Highway Traffic Safety Administration (NHTSA) recently issued a new regulation that will require all vehicles under 10,000 pounds to have backup cameras by 2018. A lack of rear visibility causes a substantial number of pedestrian injuries and deaths every year. Children face a greater risk, simply because they tend to be smaller and therefore more difficult for a driver to see if they are directly behind a vehicle. A law passed by Congress in 2007 directed the NHTSA to develop regulations by 2011, but multiple delays have occurred since then. A lawsuit filed in September 2013 sought a court order directing the government to issue the rule mandated by the 2007 law.

The NHTSA reports that backover accidents, in which a vehicle strikes a person or another vehicle while driving in reverse, cause around 15,000 injuries and 210 deaths every year. Thirty-one percent of the deaths caused by backover accidents are children under the age of five, and twenty-six percent are adults age seventy and older. The new regulation, which will be added to Part 571 of Title 49 of the Code of Federal Regulations, will require the installation of backup cameras in new vehicles beginning on May 1, 2016, with full compliance expected by May 1, 2018. Cameras must be able to display a 10-foot by 20-foot area behind the vehicle. The NTHSA estimates a maximum cost of $45 per vehicle to install a camera, or $142 to install a full system. It states that the regulation, once fully implemented, will save fifty-eight to sixty-nine lives per year.

Congress directed the NHTSA to make a rule requiring backup cameras in the Cameron Gulbransen Kids and Cars Safety Act of 2007. The bill was named for a two-year-old child who died when his father, unable to see him in the rearview or sideview mirrors of his SUV, accidentally backed over him in 2002. The bill gave the NHTSA eighteen months to issue a preliminary regulation, with a determination on a final rule required within thirty months of the bill’s enactment. The NTHSA’s final deadline was in February 2011, but it kept delaying a final determination. In its press release announcing the rule on March 31, 2014, the NHTSA stated that it delayed issuance “to ensure that the policy was right and make the rule flexible and achievable.”

Fatal Accident During Film Shoot Brings Likelihood of Lawsuit

March 18, 2014 | Lebowitz & Mzhen

The death of a camera assistant during a film shoot in Georgia has raised questions about film crew safety, amid allegations that the filmmakers placed a higher priority on completing the film on schedule and under budget. The woman’s family is expected to file a lawsuit in connection with her death, but many important details of the case remain unknown. Prior court cases involving film shoot injuries or deaths have involved employment-related questions, such as whether an injured person was an employee of a filmmaker, as a key part of determining liability.

The decedent, Sarah Jones, was second assistant camera on a low-budget independent film entitled Midnight Rider. On February 20, 2014, she and others were setting up to shoot a dream sequence, which involved placing a bed frame and mattress in the middle of the tracks on a bridge trestle spanning the Altamaha River outside of Doctortown, Georgia. Crew members were warned that, in the event a train approached, they would have sixty seconds to get out of its way.

When a train did appear, Jones, a hairstylist, and the director were still on the trestle. The hairstylist told the Hollywood Reporter that their only way off involved running towards the train. She ran for a gangplank, but the train struck her left arm before she made it there. She survived, but suffered a major fracture. Another crew member managed to pull the director to safety. Jones, however, did not make it to the gangplank, and was killed by the train.

Multidistrict Lawsuit Combines Claims of Collegiate Athletes Seeking Damages for Concussion Injuries

March 11, 2014 | Lebowitz & Mzhen

A series of lawsuits allege that the National Collegiate Athletic Association (NCAA) breached a duty to protect and safeguard student-athletes against concussion injuries. The U.S. Judicial Panel on Multidistrict Litigation (JPML) consolidated multiple putative class action claims into a single action in an Illinois court to resolve any common issues. In re National Collegiate Athletic Assoc. Student-Athlete Concussion Injury Litigation, No. MDL-2492, mot. to transfer (N.D. Ill., Sep. 4, 2013). One of the consolidated lawsuits claims a class consisting of all current and former collegiate athletes suffering from concussion-related injuries, while the others only claim classes of former athletes. A track runner recently became the first active Division I-A athlete to bring such a claim against the NCAA, but dropped the lawsuit without prejudice shortly after filing it.

“Concussion” is a term applied to a range of traumatic brain injuries caused by a direct blow or jolt to the head. Athletes in “contact” sports, especially football, seem to be at high risk of concussions. An athlete who sustains a concussion might not even realize it right away. Symptoms may include cognitive problems, such as difficulty concentrating or thinking clearly; physical symptoms like headache, nausea, light sensitivity, and blurred vision; emotional changes like irritability and anxiety; and changes to one’s sleep cycle. A single concussion may not have a long-term impact if treated promptly. Multiple concussions can result in psychiatric disorders, memory loss, and heightened risk of dementia or Parkinson’s disease.

The JPML proceeding began when the plaintiffs in a class action lawsuit, Arrington v. NCAA, No. 11-cv-06356 (N.D. Ill.) sought to consolidate several other cases in a single district. The Arrington case had already completed discovery, so consolidation would improve the efficiency of all of the case, which allegedly had common questions of law and fact. The JPML approved the transfer of the other cases to the Northern District of Illinois in December 2013. As of mid-March, 2014, the JPML proceeding includes ten pending actions.

Department of Transportation Issues Emergency Orders on Railroad Safety After Multiple Accidents

March 4, 2014 | Lebowitz & Mzhen

The U.S. Department of Transportation (DOT) recently reached an agreement with railroad companies regarding safety measures for the transportation of crude oil by train, often known simply as “crude-by-rail.” Multiple recent rail accidents have led to concerns about the safety of crude oil obtained from areas of North Dakota, Montana, and Canada. The DOT issued emergency orders in early March 2014 requiring crude-by-rail shippers to test products and clearly label crude oil from the affected regions. Individuals and families living and working along rail lines face significant risks of injury from unsafe shipping practices, and the known hazards of this particular type of crude oil make enforcing safety regulations even more important.

The Bakken formation is a geologic region within the U.S. states of Montana and North Dakota and the Canadian provinces of Saskatchewan and Manitoba. It has been a major source of shale oil in recent years. While ordinary crude oil can be pumped out of the ground, shale oil is derived from certain types of rock and requires different processes, including hydraulic fracking. The federal government issued a warning about crude oil from the Bakken region in early January 2014, several days after a train transporting Bakken crude caught fire and derailed in North Dakota. Bakken crude oil is particularly volatile, subject to catching fire and exploding if not transported correctly.

At least three additional derailments involving crude oil from the Bakken area have occurred in the past year. A derailment in Alabama in November 2013 sent twenty cars off the rails, which burned for several days. In January 2014, a derailment in New Brunswick, Canada resulted in the evacuation of forty-five homes in the immediate area. Fortunately no injuries resulted in either incident. In July 2013, however, a derailment in Lac-Mégantic, Quebec burned through a large portion of the town and killed at least forty-two people, with another five missing and presumed deceased.

Lawsuit Against Pet Store Claims General Negligence After Boy Allegedly Dies from Rat Bite

February 27, 2014 | Lebowitz & Mzhen

The family of a child who died of an infection possibly contracted from a rat bite has filed a lawsuit against the pet store that sold them the rat. The medical examiner ruled the cause of death to be a bacterial infection sometimes known as “rat-bite fever.” The lawsuit alleges general negligence, claiming that the pet store, part of the national chain Petco, failed to warn of the dangers associated with owning a rat as a pet. The plaintiffs are seeking both compensatory and punitive damages.

The ten year-old boy, who lived in San Diego, California, reportedly purchased the rat from a Petco store with his grandmother on May 27, 2013. He began experiencing severe pain at around midnight on June 11, including a fever and stomach pain. Paramedics took him to the hospital, but he died about an hour later. After conducting an autopsy, the medical examiner determined that he died of streptobacillus monliformis infection, or rat-bite fever.

According to the Centers for Disease Control and Prevention (CDC), people can contract this infection from infected rodents via a bite or scratch, or by ingesting food or water contaminated with the bacteria. Common symptoms include fever, chills, and joint pain or stiffness. The infection can be serious and even fatal, with a mortality rate of ten percent, if left untreated. A significant risk of delayed diagnosis exists because the initial symptoms are often nonspecific and the bacterium itself is reportedly difficult to culture. As rats become more popular as pets, some clinicians have expressed concern about increased risk of exposure.