States

July 24, 2013

Lawsuit Against Morgan State Will Continue

A Baltimore City Circuit Court judge has given the “go ahead” for a student’s lawsuit to proceed – for now, at least – against Morgan State University, denying a Motion to Dismiss the lawsuit.

Awful details here. The 23-year-old Plaintiff has filed suit against Morgan State for failing to act to protect students and visitors on the university campus. The lawsuit, which seeks more than $75,000 on each of three counts consistent with Maryland’s new law not to ask for specific damages in the Complaint, was filed as a result of a horrific beating that the Plaintiff received by the hands of a man later found not criminally responsible due to mental illness.

The lawsuit alleges that there was foreseeability on the school’s part that something bad would happen. That’s where the claim gets a little tricky. The attacker, prone to violent outbursts at college events, attacked the Plaintiff with a baseball bat wrapped in barbed wire, blinding him in one eye. The lawsuit states that the warning signs were there, but that Morgan State failed to act. Previously found wielding a machete on campus, and known to leave satanic rants on social media sites, the attacker has since been arrested on a separate case. Charged with murder, it is alleged that he killed and dismembered a family friend, and consumed some of the deceased’s organs.

June 25, 2013

Burden of Proof Hurdle Too High in Mississippi

by Ronald V. Miller, Jr.

A Mississippi Appeals court recently affirmed a trial court decision to throw out a Wal-Mart premise liability case involving a damaged container and corrosive burns. Instead of letting the events (and the injuries) speak for themselves, the court places an extremely high evidentiary expectation that was out of the plaintiff’s grasp. Should courts be allowing corporations to escape liability just because the plaintiff is unable to show every single detail of the accident when he is clearly injured? It is a challenge courts have wrestled with for hundreds of years.

What happened? A patron visited a Mississippi Wal-Mart in the fall of 2010. While perusing the aisles, he selected a bottle of bleach to put in his basket. After leaving the checkout counter, the patron realized he accidentally forgot to purchase the bleach and placed the bottle on his lap to return to the cashier. Unfortunately, this bottle of bleach was leaking and spilled its contents on his legs and thighs. Because of a prior injury, the man had been paralyzed from the waist down since 1967 and he did not become aware of the spilled bleach until the cashier noticed the leaking bottle. The bleach caused chemical burns on his thigh and knee, and he brought suit against the Wal-Mart Corporation.

The patron filed a premise liability claim that alleged Wal-Mart was negligent and had knowledge of a dangerous condition. Wal-Mart made a motion for summary judgment, and the trial court dismissed the case, saying that the patron failed to prove Wal-Mart’s negligent act. The Mississippi Appeals Court affirmed the lower court’s decision.

April 29, 2013

New Subsequent Remedial Measures Opinion

by Ronald V. Miller, Jr.

Last week, the Court of Appeals of Missouri decided a subsequent remedial measures case that I think is of interest to all personal injury lawyers no matter where you practice.

The subsequent remedial measures rule is one of those law school standards that any second-year student can explain in about two minutes. Despite its seeming simplicity, as we see in Emerson v. Garvin Group, the rule is more complicated to apply.

Settlement amount and jury verdicts in Missouri (update 2023)

April 9, 2013

Slip and Fall Law: Atlanta Claim Dismissed by Georgia Court of Appeals

by Ronald V. Miller, Jr.

I’m amazed at how many smart, well-informed people are under the impression that if an accident occurs on a business’ property, the business is automatically liable for any and all damage. In the real world, slip and fall cases present much bigger hurdles to climb.

Georgia Slip and Fall Cases Never Sees Courtroom

Last week, the Georgia Court of Appeals upheld a trial court’s summary judgment order denying a plaintiff relief in the case of Warner v. Hobby Lobby, a case illustrative of these challenges, even in a comparative negligence state like Georgia.

March 6, 2013

Georgia Slip and Fall Case Dismissed on Summary Judgment

by Ronald V. Miller, Jr.

A federal judge in Georgia recently dismissed a slip-and-fall case against Walmart finding that the company owed the woman no duty to keep its store safe from water hazards.

In Chapman v. Wal-Mart, Wal-Mart’s Customer Service Manager began instituting rainy-day procedures. Employees were instructed to place carpeted mats in the inside vestibule, inspect the vestibule and front store area throughout the morning for dampness, dry off shopping carts, hand out umbrella bags, and use brightly colored cones to warn customers of possible water on the floor.

When the plaintiff entered the store, the rain had ceased, but the weather remained damp. She entered the vestibule to grab a shopping cart, not looking down at the ground while doing so. On her way to the carts, she slipped and fell. Upon falling, she noticed a puddle on the ground. Plaintiff brought a slip-and-fall case in federal district court, alleging Wal-Mart acted negligently by failing to keep the store free of puddles and for failing to adequately warn her of puddles.

February 6, 2013

New Malpractice Opinion from Tennessee

by Ronald V. Miller, Jr.

In medical malpractice cases, form triumphs over substance way too often. Tennessee has been largely immune from this problem because, for years, Tennessee malpractice law did not require plaintiffs’ lawyers to jump through the hoops required by many states. Now, Tennessee has added a certificate of merit requirement and other technical obligations to filing a medical malpractice case.

tennessee medical malpractice You know, I’m fine with these requirements. What I don’t like is when potentially worthy plaintiffs are denied justice permanently because their lawyers screw up the details.

This is what happened in Williams v. Mountain States Health Alliance. In Williams, a 68-year-old female patient was undergoing myocardial perfusion imaging (a nuclear stress test) when she fell off the table to which she had been strapped. During the procedure, the patient made a sudden movement, broke free of the table straps, and fell onto the floor hitting her right side. Prior to the fall, the patient had suffered a stroke and paralysis to the right side of her body. Additionally, she was morbidly obese. The technicians who strapped the patient to the table allegedly knew (or should have known) this.

January 15, 2013

Huge Asbestos Verdict Taken Away by Virginia High Court

by Ronald V. Miller, Jr.

You get a big verdict. Defendant’s big bone of contention on appeal is an evidentiary issue. When this happens, and it has happened to me a number of times, you are feeling pretty good about your chances. Particularly when the standard is – as it is for most evidentiary issues – an abuse of discretion.

There were some Virginia lawyers probably feeling the same way. That is until last week when the Virginia high court flipped their $18 million verdict against Exxon.

Plaintiff got a wrongful death verdict against Exxon in a lawsuit involving a man who developed mesothelioma while working on Exxon ships. Suffice to say, the jury was not happy with Exxon, awarding $12 million in compensatory damages, $12.5 million in punitive damages and nearly a half a million in medical damages. The punitive damage award was knocked back to $5 million, still leaving the plaintiff with a nearly $18 million verdict.

December 20, 2012

Pre-Judgment Interest Medical Malpractice Case

by Ronald V. Miller, Jr.

The Indiana Supreme Court sent back to the trial court last week a wrongful death medical malpractice action involving the tragic death of a child after surgery for an undescended left testicle. The boy was just 13 months old. Just awful.

The issue in Alsheik v. Guerrero was something far less sad: prejudgment interest. This case went to trial and the jury awarded $1.165 million. The trial judge denied the plaintiff’s attorney’s request for pre-judgment interest. The plaintiff appealed this ruling.

In Indiana, for civil cases to qualify for prejudgment interest, the plaintiff must send a settlement letter. The purpose of the settlement letter is to give the defendant “notice of a claim and provide them with an opportunity to engage in meaningful settlement.”

December 19, 2012

Minnesota Wrongful Death Lawsuit Result in an Award of $591,000

by Ronald V. Miller, Jr.

After a week-long wrongful death trial in Minnesota, the family members of a twenty-two-year-old college student killed on a bicycle have said that while they are grateful for the jury award of $591,000. However, they would have preferred that the two men they blame for their son’s death be forced to spend time in prison. Felony murder and battery charges were dismissed against both defendants.

Sad details here. Apparently, the deceased disagreed with a member of a college hockey team. That member and several other players and recruits were said to have consumed 100 shots of alcohol that night. After the disagreement, the deceased apparently fled the bar on a bicycle, fleeing for his life while being chased by the boys. There were differing accounts of whether the boy was pushed, and by whom or whether his high level of intoxication caused him to crash. Regardless of fault, it is clear that the night was riddled with poor judgment and misconduct and that the death of this young man was absolutely senseless.

This garbage happens in college and usually does not end in death. Kids drink too much and do stupid things and, usually, no real harm is done. But sometimes things go really wrong, as they did in this case and this tragedy will impact this boy’s family for the rest of their lives.

October 15, 2012

A Product or a Service? Battle in Indiana

by Ronald V. Miller, Jr.

Trying to tell the difference between a product and a service may not be harder than deciding if a glass is half full or half empty, or if a tomato is better characterized as a fruit than as a vegetable, but it is certainly not easy.”
Whitaker v. T.J. Snow Co., 151 F.3d 661, 664 (7th Cir. 1998).

Is it a good or is it a service? This argument has been fought ever since the distinction between products’ cases and service arose. This distinction really mattered in a burn injury case in Indiana that was decided last week because the Indiana Product Liability Act does not apply to transactions that involve wholly or predominantly the sale of a service rather than a product. Barely, it would seem, a lawsuit against a maker of work shirts for burn injuries, allegedly caused because of the failure of a cotton uniform shirt to serve as expected, survived summary judgment last week in Indiana.

Here are the facts. Plaintiff was a welder/plasma torch operator who was operating a Pro Cut 80 plasma cutter made by the defendant. The Pro Cut 80 plasma cutter is used to cut through metal and steel. As you would expect, the plasma cutter fires off sparks when cutting metal. While using the plasma cutter, the plaintiff’s shirt catches fire causing serious burns.

Plaintiff sued a number of folks, including the manufacturer of the shirts saying these shirts just shouldn’t catch fire like that because everyone knows what the people in these shirts are doing, and the defendant has an obligation to make them safe for the intended use. The plaintiff’s argument that the negligence claim is not subject to the product liability act in Indiana because the relationship between the defendant and plaintiff’s employer was for the laundry service rather than the providing of work shirts.