As students head back to school this semester, there are a range of potential dangers some may face on school grounds, on the bus or while playing sports. childhand

School districts do have a responsibility to properly supervise children and keep them safe. The extent of that responsibility may vary depending on the circumstances and age of the child. When child injury does occur, it’s important to seek out an experienced injury lawyer because these cases are complex due to the fact the school district is a branch of the government. That means assertions of sovereign immunity may need to be overcome, and these are not simple matters.

In the recent case of Benda v. Catholic Diocese of Salt Lake City, the question was whether parents were entitled to file a loss of consortium claim against the school district for the severe injuries suffered by their son, when loss of consortium claims are typically reserved for spousal losses.

For those who may be unfamiliar, loss of consortium is a type of claim in which a person alleges damages were suffered by certain family members of a person who was injured or killed by the negligent or intentional wrongful acts of another person. This type of claim can be filed by loved ones of the victim, though it is usually the spouse that reserves this right. Claims for filial loss of consortium may be filed in North Carolina, though these rights vary from state-to-state. Filial loss of consortium claims are meant to compensate a parent or parents for the loss of love and companionship of a child. Some states also allow parental consortium claims.  Continue reading

Reversing two lower courts, the New Jersey Supreme Court ruled recently that a customer pursuing litigation against an indoor water park can proceed to trial with his case, despite having signed a waiver of liability prior to the accident. The ruling is a victory not just for plaintiff in Steinberg v. Sahara Sam’s Oasis, but for others injured despite having signed a liability waiver. It signals that a waiver isn’t the absolute line in the sand that defendants uphold it to be. waterpark

The state high court, in ruling the plaintiff could go on with his case, ruled that a reasonable juror could conclude the proximate cause of plaintiff’s injuries was gross negligence on the part of the defendant.

Although liability waivers are becoming increasingly common, this case shows they are not impenetrable. One of the circumstances under which a plaintiff can sidestep a liability waiver is by asserting gross negligence, as opposed to simple negligence. Whereas negligence is merely a failure to use reasonable care, gross negligence is the conscious and voluntary disregard for the need to use reasonable care in a circumstance that is likely to cause foreseeable grave injury or harm to persons, property or both.  Continue reading

The North Carolina Court of Appeals has reversed a summary judgment favoring a medical doctor, deciding the patient/plaintiff did present enough information to indicate a question of material fact on the issue of whether her surgeon should have performed more testing prior to a second surgery to remove a cancerous mass in her arm. arm1

Plaintiff alleged the doctor violated the accepted standard of medical care for his type of practice when he failed, following an initial, failed surgical procedure to conduct further testing to ascertain exactly what type of mass he was operating on. Plaintiff alleges that because it was a specific type of mass in which the complex system of roots spread out across nerves and an artery – and not a simple lipoma, as the doctor reportedly assumed – the second surgery was botched. She suffered nerve damage that affects her daily life, she said, and had to undergo yet another surgery to actually have the mass fully removed.

In Seraj v. Duberman, the appellate court ruled the trial court should not have granted summary judgment to the defendant doctor. Instead, there is sufficient evidence for the case to go to trial.  Continue reading

When a recreational boating accident killed four vacationing adults during a vicious storm in a Utah lake, questions arose about what responsibility the boat’s owner had to those tourists. boating

Now, with a recent decision by the U.S. Court of Appeals for the 10th Circuit in the case of In re: Aramark Sports, one key question has been answered, but another still remains.

In a 3-0 decision, the appellate panel ruled the boat rental company didn’t have a responsibility to warn boaters of the weather conditions that day. A forecast had been provided to them by the boat rental company the night before. On the day of, the group of six were told how to access the weather radio on the vessel. However, they weren’t told of the updated forecast, which indicated sustained winds of between 25 and 35 mph and gusts of up to 55 mph.

But what they also didn’t know – and what the court ruled must still be decided – is whether the boat company had a duty to inform its customers of the weather limitations of the vessel. The vessel they rented could only withstand a maximum wind speed of 31 mph. According to the manufacturer, even that would be a stretch, as only the “most experienced” captain and crew could safely navigate the vessel through water facing winds of that speed.  Continue reading

Suing the government for premises liability requires overcoming a number of legal hurdles. It is true that government entities do owe the public a reasonable duty of care on public property, and the government can be successfully sued when they fail in this duty and someone gets hurt.grassypark

However, claims against the government are often up against tighter timelines. In some states, claims have to be filed within just 30 days of the incident. You also generally have to provide proper notice to the government agency so that they can launch their own investigation. It’s only once the statutory timeline has passed for that investigation that you can actually file your lawsuit. And then from there, you may have to deal with the headache of sovereign immunity. The government does waive its sovereign immunity rights for a wide range of personal injury claims. However, if the injury stemmed from negligence related to a function of government that involved planning decisions and discretionary choices, the discretionary function exception may apply and the government could be immune from litigation.

Typically, if your claim is based on an act or omission of a government worker who exercised due care in executing a regulation of statute, the government won’t be liable. Further, the government generally isn’t liable if that government worker used discretion in his or job – regardless of whether that discretion was abused. Continue reading

Wyers v. American Medical Response Northwest Inc., is the consolidated appeal of six women – just a handful of the many reported victims – who sought recompense from an ambulance company that employed a paramedic who repeatedly sexually assaulted women he was transporting. Victims ranged in age from their teens up to their late 80s and most reported being in a vulnerable state, barely conscious or in shock as the paramedic assaulted them. Their complaints to the ambulance company were ignored, dismissed or “lost.” ambulance2

Then, in 2007, defendant paramedic was transporting a female patient to the hospital when he reportedly placed his hand on hers and then shoved both their hands down inside the front of her pants. As soon as she arrived at the hospital, she began screaming and crying to hospital staff. Police responded to the scene and, in the course of their investigation, they learned the ambulance worker had an extensive history of complaints from female patients who had been transported by him. He was arrested – and later convicted – of first-degree sexual abuse of four women.

The publicity from the initial claim caused other women to come forward. That first victim and three others filed civil lawsuits against the transport company. Plaintiff in Herring v. American Medical Response Northwest prevailed (the verdict was affirmed on appeal), and the other former patients’ claims were then settled out-of-court. Preparation for these cases resulted in other victims being discovered. They asserted that their complaints were not taken seriously at the time. Six of those women filed their own personal injury lawsuits against defendant ambulance company.

And that brings us to the Wyers case.  Continue reading

A spate of amusement park injuries has been reported in recent weeks as summer comes to a close.rollercoaster2

Most recently, it was reported that a 3-year-old boy in Pennsylvania was seriously injured after being thrown from a roller coaster that was not equipped with seat belts. According to local news affiliate WPXI, the child was at Idlewild & Soak Zone with his family. The ride is reportedly 27-feet high at its maximum height, but was built in 1938 without seat belts or other restraints. Young children who were at least 36-inches tall were allowed to ride, but only with an adult present. Riders 48 inches or taller could ride solo. The boy was reportedly riding with his 5-year-old brother. It is not clear why the rules of the ride were not being followed, or even if they had, what that might have done to have prevented the incident. The child was being treated at Children’s Hospital of Pittsburgh of UPMC.

The ride was shuttered immediately and will remain closed for the duration of the investigation. Officials did say the ride passed a private inspection a week before the accident, though that doesn’t necessarily mean the ride wasn’t defective or the operator wasn’t at-fault.  Continue reading

A May 2016 survey by the American Pet Products Association revealed there are approximately 78 million dogs owned as pets in the U.S. The Centers for Disease Control and Prevention (CDC) reports that about 4.5 million people are bitten every year by dogs, with about 885,000 of those needing medical attention. Roughly half of those are children. dog4

In many cases, injured victims may seek compensation for these injuries through homeowners’ insurance policies. In fact, dog bite claims accounted for one-third of all homeowner insurance liability claims paid out last year, or a total of $570 million, according to the Insurance Information Institute. Further, dog bite claims increased by more than 7 percent last year, and the average cost-per-claim was up 16 percent over 2014. On average, insurers pay out $37,000 per dog bite claim.

While bites may be the most common pet-related injury we see as injury attorneys, they aren’t necessarily the only ones. Take the case of Am. Family Mut. Ins. v. Williams, recently before the U.S. Court of Appeals for the Seventh Circuit.  Continue reading

When a patron is injured on business property, the injured person may file a premises liability lawsuit. Either the owner or the occupier of the property may be deemed liable for the injuries, depending on the circumstances. bucket

In most cases, it’s the occupier of the property that will be held responsible for injuries that occur on the property, regardless of who the actual owner is. That’s because usually, it’s a question of which party had more control over the area.

Still, there are also sorts of caveats to consider. The recent case of Morlin Asset Mgmt. LP v. Murachanian is an example of that. This was a matter recently before an appellate court in California, and it involved an appeal of summary judgment on two cross-complaints filed by apportionment of fault by a commercial landlord and a management company against a tenant. The landlord and management firm were sued for negligence following a patron’s slip-and-fall injury, and defendants sought to add their tenant to the claim, arguing if anyone was responsible, it was the tenant.  Continue reading

In the criminal court system, we prosecute only those responsible in some capacity for the alleged crime. In the civil justice system, where the goal is not to penalize but rather to restore, we do allow third parties to be held liable for the criminal actions of others when there is evidence those third parties failed in their duty to protect the victim or warn of danger. guncloseup

Still, our courts can struggle with this concept – when such a duty exists, the extent of it and whether victim was deserving of protection.

The recent Oregon Supreme Court case of Piazza v. Kellim, a Peruvian foreign exchange student living in Portland was brutally gunned down in a 2009 mass shooting at a teen nightclub. She was just 17, and she died from her wounds. The gunman, who was diagnosed with schizophrenia, shot several students, killing two, before turning the gun on himself. The representative of one of the exchange student’s estate later sued the now-defunct club and other businesses, as well as the organizer of the student exchange program, were negligent. Continue reading

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