Slip and Fall

State Supreme Court Throws Out Jury Verdict in Premises Liability Case

Published on: June 27, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The Supreme Appellate Court of West Virginia recently decided to reverse a judgment of over $55,000 that had been awarded to a plaintiff after a jury trial in a negligence case filed against a public parks commission by an injured plaintiff. The original verdict and award, based on the jury’s finding that the park operators had negligently failed to keep the grounds of the park safe for visitors, was reversed after the high court found that the plaintiff failed to prove the causation element of his premises liability claim. As a result of the recent ruling, the defendant has been relieved of any responsibility for the plaintiff’s injuries as a matter of law, and the plaintiff will be unable to recover compensation for his claim.

Plaintiff Falls Down a Hill after Leaning on an Unsafe Fence

The plaintiff in the case of Wheeling Park Commission v. Dattoli was a man who was injured while visiting a park operated by the defendant in September 2007. According to the facts noted in the recent opinion, the plaintiff was with his wife standing atop a hill when he leaned against a fence post to rest and put his hand on the top rail. The plaintiff testified that he briefly inspected the fence rail before leaning on it, and it appeared to be in good repair. Despite its appearance, the wooden rail had partially decayed and was not strong enough to support the man’s weight, causing it to break from the fence post and sending the man over the lower railing and down the hill, causing him to seriously injure his shoulder.

Plaintiff Files a Personal Injury Lawsuit and is Awarded Damages in a Jury Trial

The plaintiff filed a premises liability lawsuit against the defendant, alleging that their negligence in failing to properly keep up the fence or warn visitors that they shouldn’t lean on it was the cause of his injuries. At trial, the plaintiff called the park’s director of operations as a witness. The witness testified that the wooden fence was at least 17 years old at the time of the accident and could produce no evidence that the fence had been repaired or maintained since it was installed. Based on the evidence produced at the trial, a jury awarded the plaintiff over $55,000 for his medical expenses and lost wages as a result of the injuries he suffered.

Appellate Court Orders District Court to Allow Defendant’s Medical Expert to Examine Plaintiff in Personal Injury Case

Published on: June 2, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The Supreme Court of the State of Texas recently released an opinion and issued a rarely utilized type of order allowing an expert retained by the defense in a personal injury lawsuit to perform a medical examination on the plaintiff during an ongoing premises liability lawsuit. The defense’s request, which was previously denied by the trial court, was made to allow the defense to present the most credible responses to the plaintiff’s claims at trial. Since the high court’s order was issued in a proceeding that is ongoing, the plaintiff’s claim for damages may still prevail, although he will be unable to prevent the defendant’s proposed expert from performing a medical examination on him before the case proceeds to trial.

The Plaintiff Was Injured Outside a Grocery Store Operated by the Defendant

The plaintiff in the case of Rodriguez v. H.E.B. Grocery Company filed a personal injury lawsuit after he alleged that he was injured when he tripped on an unsecured plate in the parking lot of a property that was operated by the defendant. In response to the plaintiff’s lawsuit, the defendant retained a medical expert to ascertain the source of the plaintiff’s alleged injuries and offer a medical opinion as to whether the injuries were caused by the plaintiff’s fall on the defendant’s property. After reviewing the medical records of the plaintiff but without performing a physical examination on him, the defendant’s expert offered a report that concluded the plaintiff’s injuries were likely the result of a pre-existing condition, rather than the injuries sustained on the defendant’s property, as the plaintiff alleges.

The Plaintiff Also Retains an Expert Who Performs a Physical Examination

In addition to the medical expert retained by the defense, the plaintiff also hired a doctor to serve as an expert witness and offer an opinion on the source of the plaintiff’s injuries. The plaintiff’s expert performed a medical examination and would presumably testify that the plaintiff’s injuries were caused by the slip and fall on the defendant’s property. After the plaintiff’s expert was proposed to the court, the defendant requested that their expert be permitted to perform a physical examination on the plaintiff, arguing that a jury would give more weight to the plaintiff’s expert testimony merely because he was able to perform a full physical examination. The district court denied the defendant’s request, leading them to file an emergency appeal to the state supreme court.

Judgment in Favor of County Fair Association Affirmed after Plaintiff Injured During Free Fireworks Display

Published on: April 21, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The North Dakota Supreme Court recently released an opinion that affirmed a lower court’s granting of summary judgment to the defendant, a county fair association, in a case that was filed by a woman who was injured during a fireworks display that was put on at the county fair. The court found that the defendant was protected from liability by what is known as “recreational land use immunity,” which is contained in the North Dakota state code. Based on the appellate ruling, the plaintiff will be unable to collect compensation for the injuries that she suffered due to the alleged negligence of the county fair association.

Plaintiff Is Allegedly Injured by Improperly Maintained Grandstand Equipment

The plaintiff in the case of Woody v. Pembina County Annual Fair and Exhibition Association was a woman who attended the county fair to watch a fireworks exhibition. According to the facts expressed in the appellate opinion, the plaintiff stepped on a rotten board while looking for a seat in the grandstand and fell to the ground, suffering serious injuries.

After the case was filed, the defendant moved for judgment in their favor, arguing that as a non-profit entity that was offering the fair and fireworks exhibition free of charge, they were not liable for negligence under the recreational use immunity statute. The plaintiff disagreed, claiming that the defendant was operating the event for commercial purposes, and their non-profit status was not relevant to the determination of immunity.

State Supreme Court Holds that an Employee Who is Responsible for Maintaining a Public Park is Not Immune From a Premises Liability Claim

Published on: April 7, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The Supreme Court of the State of Oregon recently decided a case in which they found that the maintenance supervisor of a public park was not entitled to immunity from a premises liability lawsuit alleging that his negligence resulted in injury to the plaintiff. The plaintiff in the case of Johnson vs. Gibson is a blind woman who was injured when she fell into a hole that had been dug by the defendant in a public park in Oregon. The issue decided by the Oregon Supreme Court in Johnson vs. Gibson was not dispositive as to the plaintiff’s claim of negligence, but instead it focused on whether her case could proceed against the defendant, who was an employee of the City of Portland, which is itself immune from the lawsuit under Oregon law.

Sovereign Immunity and the Court’s Analysis of the Defendant’s Claim of Immunity

The defendant’s motion to dismiss the case against him was based on the fact that in Oregon (as is also the case in Florida), governmental agencies cannot be sued for the negligence of their employees in the same way that a private company can. Longstanding legal precedent has established that governments and municipal subdivisions are not liable in the courts for simple negligence, and every state in the country, as well as the federal government, have since put this sovereign immunity on the books as part of the state and federal codes. In many jurisdictions, it is possible for negligence victims to collect damages through an alternative process, and there are also other methods of recovery that can be used to help accident victims collect damages against a negligent government employee.

Orlando Federal Court Remands Child’s Premises Liability Claim Back to Florida State Court

Published on: January 18, 2016 | by Friedman Rodman Frank & Estrada, P.A.

In A.Z. v. Bonnet Creek Resort Vacation Condominium Assoc., Inc., a minor was apparently injured when she tripped and fell while visiting a Florida condominium complex. The Georgia resident later filed a lawsuit against the property owner in Orange County, Florida Circuit Court. In response to the purportedly injured child’s complaint, the condo association removed the lawsuit to federal court.

Under 28 U.S.C. § 1441, a civil case may be removed to federal court when no federal questions exist if the parties to a lawsuit are citizens of different states, and the amount in controversy exceeds $75,000. At the time of removal, the condominium association also requested discovery concerning the minor plaintiff’s Georgia citizenship. Following removal to federal court, the Middle District of Florida in Orlando ordered the parties to address whether remand back to a Florida state court was appropriate sua sponte, or of the court’s own accord. Generally, a court may take such an action without a request from either party if a case should be transferred to another court due to a conflict of interest, or the court believes it likely does not have jurisdiction over the parties’ dispute.

Federal Court Lacks Subject Matter Jurisdiction in Clearwater Slip and Fall Case

Published on: September 25, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Chase v. Hess Retail Operations LLC, a woman was apparently injured when she slipped and fell at a Clearwater gas station. As a result of her harm, the woman filed a negligence lawsuit against the owner of the gas station in a Florida state court. The gas station then removed the case to the Middle District of Florida based on diversity of citizenship because the woman denied that her damages did not exceed $75,000 in her response to certain requests for admissions.

Under federal law, the defendant in a lawsuit may remove a case to federal court for a number of reasons, including diversity jurisdiction. In order to establish diversity, the parties to a lawsuit must hail from different states, and the amount in controversy must be more than $75,000. Since a plaintiff normally selects his or her preferred venue when a lawsuit is filed, the defendant bears the burden of demonstrating that diversity jurisdiction exists. In general, a federal court must construe the facts of a case in which diversity jurisdiction is disputed in favor of remand back to state court.

Appeals Court Overturns Comparative Negligence Ruling in Florida Premises Liability Case Where Plaintiff Was Wearing High Heels

Published on: May 1, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Bongiorno v. Americorp, Inc., a Florida woman filed a premises liability claim against a property owner over the injuries she allegedly sustained when she fell on a slippery bathroom floor in the office building where she was employed. In response to the lawsuit, the property owner denied liability for the woman’s harm and asserted the defense of comparative negligence. Following a bench trial, a judge ruled in favor of the woman but found both parties equally negligent for her injuries. According to the judge, the woman was 50 percent responsible for her slip-and-fall harm because she wore four-inch high heels to work. As a result, the hurt woman’s damages award was significantly reduced.

On appeal to the District Court of Appeal of Florida, Fifth District, the woman argued the lower court judge committed error when he found her negligent for wearing high heels to work because there was no evidence offered to support such a conclusion. The building owner countered that women often fall as a result of wearing four-inch high heels, and the plaintiff assumed the risk when she chose to do so. In addition, the property owner claimed the fact that the woman told her doctor she was wearing such shoes at the time of her injury indicated an individual who was wearing so-called “safer footwear” could avoid falling on the supposedly slippery floor.

Appellate Court Refuses to Overturn Discovery Order Compelling Production of Social Media Photos in Florida Slip and Fall Case

Published on: January 12, 2015 | by Friedman Rodman Frank & Estrada, P.A.

Florida’s Fourth District Court of Appeal has refused to overturn a unique discovery order in a premises liability action. In Nucci v. Target Corp., a woman allegedly slipped and fell on a foreign substance while shopping at a Florida department store in 2010. Following the incident, she filed a premises liability lawsuit against the store. In her complaint, the woman sought financial compensation for her resulting physical harm, pain and suffering, medical expenses, lost wages, future impairment, and other damages.

Prior to taking the injured woman’s deposition, counsel for the store reviewed the injured woman’s public Facebook social media profile. During her deposition, the attorney asked the woman to provide him with access to the photos included in her Facebook account. At the time, the woman objected to the company’s request. Two days later, counsel for the store again reviewed the woman’s social media profile and discovered a number of photographs were deleted. After that, the store filed a motion to compel inspection of the woman’s Facebook account. The store also asked the woman to refrain from destroying any further information included in her social media account.

Florida Court Dismisses Slip-and-Fall Case Against Cruise Line: Torres v. Carnival Corp.

Published on: July 25, 2014 | by Friedman Rodman Frank & Estrada, P.A.

The Southern District of Florida has dismissed a slip-and-fall case against a cruise ship operator. In Torres v. Carnival Corp., a passenger on a cruise ship filed a negligence and failure to warn lawsuit against the company that owns the vessel on which she traveled, seeking damages for the injuries she allegedly sustained in a slip-and-fall accident on an exterior deck. According to the woman, she tripped over a raised threshold that was obscured by a rug while walking through an opening during disembarkation.

In response to the woman’s lawsuit, the cruise ship company filed a motion for summary judgment. When a party to a lawsuit files such a motion, the party is asking the court to find that no genuine issue of material fact exists and that the party is entitled to judgment as a matter of law. When considering a motion for summary judgment, a court must view all of the evidence offered by each party in the light that is most favorable to the non-moving party. When a summary judgment motion is granted, a court is essentially stating a jury trial is not required based on the facts of the dispute.

To prove negligence, an injured person is required to demonstrate that an at-fault party owed him or her a duty, violated that duty, and directly caused his or her harm because of that violation. According to the Southern District of Florida, the woman failed to carry her burden of proving negligence because she did not demonstrate the carpet lying on the threshold was unreasonably dangerous. In fact, testimony offered to the court suggested exactly the opposite was true. In addition, the court stated that even if a dangerous condition existed, the cruise ship did not fail to warn the woman because Florida does not require any warning for an obvious hazard like a rug.

Diversity Jurisdiction at Issue in Florida Premises Liability Case: Mortensen v. Omni Hotels Management Corp.

Published on: June 12, 2014 | by Friedman Rodman Frank & Estrada, P.A.

A federal district court in Florida has ordered that a man’s premises liability lawsuit be tried before a Nassau County court. In Mortensen v. Omni Hotels Management Corp., a man was allegedly injured when he slipped and fell while visiting a restaurant located inside of an Omni Hotel franchise. Prior to filing his case, the man offered to settle his claim against the hotel for $250,000. After the hotel refused the man’s settlement offer, he filed a premises liability lawsuit against the company in Nassau County, Florida. In his complaint, the man asked the court to award him “more than $15,000” in compensation for his medical care, pain and suffering, and a number of other supposedly continuing damages. The hotel removed the case to federal court based on diversity jurisdiction and the man promptly asked the federal court to remand the case back to state court.

In order to remove a lawsuit to federal court, 28 U.S.C. § 1332(a) states the parties must be citizens of different states and the amount in controversy must exceed $75,000. According to the Middle District of Florida, the injured man and the hotel chain agreed that they hailed from different states. The only question at issue in the case related to the amount in controversy. Since the hotel sought to remove the case to federal court and the injured man did not specify the amount of damages he sought, the federal court stated the burden of demonstrating the amount in controversy was more than $75,000 fell on the business. Additionally, the court said any doubts regarding proper federal jurisdiction should be decided in favor of remanding the case to state court.

Next, the Florida federal court examined the facts of the case. Although a settlement offer may provide evidence regarding the amount in controversy, the court stated the man’s request for $250,000 appeared to be simple settlement posturing when compared to his accrued medical expenses. The court also found that the man’s purported ongoing medical needs did not support a finding that the amount in controversy requirement was met. Likewise, the court stated that the fact that no stipulation existed regarding the amount of damages the man expected to recover did not suggest the amount in controversy exceeded $75,000. Finally, the federal court said although awards from similar cases can assist a court in determining the amount in controversy, none of the cases offered as supporting evidence by the hotel suggested the injured man would likely recover more than $75,000. Since the hotel did not offer sufficient evidence to suggest the amount in controversy supported federal jurisdiction, the court remanded the man’s premises liability lawsuit to state court.