Virginia Beach Personal Injury Lawyer - Property Owner's Liability (Slip & Fall)

Improper Stacking Cases - Falling Items at a Big Box Retailer

John Cooper — Thu, 03 Dec 2009 13:48:58 GMT

The "big box mart" era is in full-swing in the United States and many of us find ourselves in one of these stores at least once a week. These are not standard grocery stores or local drug stores, but the Home Depots, the Targets, the Super K-Marts, and the quintessential Walmart. These stores offer us the chance for one-stop-shopping with low prices. We enter these stores ourselves and with our families and friends thinking only of shopping and finding the best deals of the day. We do not think that our innocent foray into the aisles of Walmart may land us in the hospital with a serious injury. While this sounds silly and seems unlikely, the truth is that thousands of people have been injured by falling merchandise in this country and the number keeps rising. The warehouse style storage of items for sale and the lack of help for accessing all that stuff on high shelves makes these stores, especially likely to have tumbling merchandise hitting folks on the head or shoulders while shopping.

Every week hundreds of claims are made by customers against large retailers for injuries they have sustained in a falling merchandise incident. For many of the people who are involved in an accident like this, the injuries may not be more severe than cuts and bruises; however, sadly, when children or the elderly are involved, falling merchandise can prove to be fatal. The problem with cases like this is that we as customers at these stores are not in control of our surroundings. Obviously, it is important that we take notice of signs or instructions in stores and that we are aware of what is going on around us. However, our safety is really placed in the hands of the store and its employees.

Often times, falling merchandise incidents occur because of improperly trained employees. These workers are not properly trained in the methods for safely stacking and storing merchandise or how to properly operate machinery. One incident in which a child was killed at Home Depot store involved a worker who was driving a forklift with countertops precariously balanced on it which then fell and caused the child to suffer severe head trauma from which she died the next day.

When a store invites customers into its facility, it has a duty to use ordinary care to keep the store reasonably safe and that means that all employees should be properly trained and all merchandise should be properly stored, stacked, and secure. This also means that the store has a duty to take reasonable steps in monitoring high stacked merchandise and if a customer moves or shifts something, an employee needs to inspect that it has not become dangerous. This is about accountability for store owners, managers, and their employees. This is a long-standing doctrine in the law that invitees (customers) are owed a duty of care and that if that duty is violated, it generally means that the business is liable for harms caused by its carelessness.

If you or a loved one are ever involved in a falling merchandise case, it is extremely important that you find witnesses immediately and that you yourself make a record of the incident. It is key to do this as close to the incident as possible when the details are still fresh in your mind. You want to be able to show that it was the negligence of the store that caused your injuries. While not all injuries are severe, it is important to seek treatment or at least to consult your physician after an accident like this, since some injuries may not be immediately apparent and only your doctor can advise you on what to watch out for.

While it is true that accidents do happen in stores and that they happen rather more frequently than we would like, at this time of the year, try not to let such worries dampen your shopping spirit. But watch out, as it is not just prices that are falling!

Originally posted at InjuryBoard by John Cooper

Dozens hurt in Virginia Beach (VA) collapse to divide just $375,000

Rick Shapiro — Mon, 05 Oct 2009 15:49:25 GMT

Three dozen people hurt – some maimed and disabled for life – after a deck collapsed in the Sandbridge section of Virginia Beach in 2005 are being forced to divide just $375,000, The Virginian-Pilot reported Monday.

The incident provides a harsh reminder of how important it is to have complete health insurance – and how dangerous an uninspected rental property can be for your unwitting guests.

The case is pending before Virginia Beach Circuit Court Judge William R. O’Brien, who will decide who gets how much after the October 2005 collapse at 2576 Sandfiddler Road.

The 36 people hurt have amassed $556,000 in medical bills, the newspaper reported. In addition, they have suffered a total of $70,000 in lost wages.

The injuries happened at a six-bedroom benchfront rental home owned by Earle and Patricia Mulrane. The home had been rented out by newlyweds Amanda Hall and Kristopher Hoke.

A number of wedding guests were on the third-floor deck when it tore away from the house. Some people fell onto the deck below, others into the pool, and yet others onto the first-floor patio.

The deck had merely been nailed to the side of the house, city inspectors subsequently discovered, when it should have been bolted to the home’s frame.

The nails rusted and eventually became useless.

The home’s insurer will pay $300,000 – the limit of the Mulranes’ coverage – and the Mulranes will pay just $75,000 despite selling the home earlier this year for $900,000, twice what they paid for it.

My sympathy goes out to these people. I hope these innocent victims are made whole, and that their pain serves to teach others the dangers that lurk in poorly-built rental properties.

About the Editors: Shapiro, Cooper Lewis & Appleton is a law firm which focuses on injury and accident law and we have experience handling slip, trip, and fall cases.Check out this case result involving a woman who slipped and was injured at a restaurant. Our primary office in based in Virginia Beach, Virginia (VA). Our lawyers hold licenses in NC, SC, WV, KY and DC. We are ready to talk to you by phone right now—we provide free initial confidential injury case consultations, so call us toll free at 1-800-752-0042. Our injury attorneys also host an extensive injury law video library on Youtube . Furthermore, our lawyers proudly edit the Virginia Beach Injuryboard and Norfolk Injuryboard as a pro bono public information service.

(MM)

Originally posted at InjuryBoard by Rick Shapiro

Watch Your Step in VA Beach’s Town Center

Randy Appleton — Fri, 22 May 2009 08:24:00 GMT

A fountain sits majestically in the middle of Town Center’s $1.7 million plaza. It’s beautiful, and it’s big. Unfortunately, it’s also dormant most of the time. Why? A perilous combination of imported Turkish marble, water, wind, and (some would say) careless oversight, which creates a perfect storm for injuries, and for lawsuits.

When wind blows through Town Center, water from the fountain blows onto the imported Turkish marble surrounding it. This marble gets wet, and, if you’ve ever fallen down a set of marble stairs in the rain (like I have), you know how incredibly slippery the surface can be when it’s even a teeny bit damp. "It's very slippery, especially for ladies, and we can't have any accidents, because of liability," said Amy Cherry of Divar-is Real Estate Inc.

The fountain is equipped with a mechanism that shuts it off when the wind speed reaches 8 mph or over. The problem, however, is that the average wind speed through Town Center is 10.5 mph. "When you combine land with water, you increase your wind speeds," said William Schmitz, climatologist for the Southeast Regional Climate Center. In fact, weather data from a Virginia Beach neighborhood near Town Center showed that wind speeds hit 8 mph on 104 of the first 115 days in 2009.

So why don’t we hear about more fountain-related fall injuries? Because most fountains, in fact nearly all of the fountains in Williamsburg, Newport News, and Norfolk use brick pavers around their fountains, which is rough, and therefore not slippery when wet (not to mention a heck of a lot less expensive).

So as the fountain rests in Town Center on this breezy afternoon, I wonder if this is an example of taxpayer dollars being wasted. Should VA Beach pay to fix the slippery surface to avoid injuries? Or should pedestrians simply use more caution? On whose shoulders does the responsibility rest? I’m a lawyer, not a judge, so it’s not for me to decide. I will say, however, that I’ll be sure to watch my step the next time I walk by the fountain in Town Center.

About the Editors: Shapiro, Cooper, Lewis & Appleton personal injury law firm is based in Virginia (VA), near the NE North Carolina (NC) border and handles car, truck, railroad, and medical negligence cases and more. Our lawyers proudly edit the Virginia Beach Injuryboard, Norfolk Injuryboard, and Northeast North Carolina Injuryboard as a pro bono public information service. Lawyers licensed in: VA, NC, SC, WV, DC, KY.

Originally posted at InjuryBoard by Randy Appleton

Fountain in Town Center Should Remain Off During High Winds

John Cooper — Thu, 21 May 2009 13:19:00 GMT

The Town Center in Virginia Beach, Virginia (VA) features a large, beautifully designed water fountain. However, it’s rarely at full capacity due to the frequent high winds in Virginia Beach, according to The Virginian-Pilot.

The concern resides in the combination of high winds and the water streaming from the fountain inundating the marble surrounding the fountain.

It can’t be that windy, right? Wrong. The area’s average wind speed is more than 10 miles per hour, the highest average in Virginia (VA).

As a personal injury lawyer whose been practicing in Virginia (VA) for over 20 years, I’m always concerned about situations which may present an injury risk to citizens of the Old Dominion. One important question that crossed my mind is this: what top professional company designed the slippery walking surface surrounding the fountain? We all know that the area around big water fountains, yes...can get wet?! Its a dubious designer that would not surround a huge fountain with one of dozens of commercially available non-skid surfaces.

The fountain situation in Town Center, if left unmonitored, could be a devastating injury waiting to happen. The risk of someone slipping and falling is just too great a risk.

I wrote an article about the legal ramifications of an injury caused by a slip and fall and I’ve represented numerous clients who’ve suffered traumatic injuries due to unsafe property conditions. The property managers of Town Center are wise to keep the water turned off due to high winds, and we need to ask ourselves: why not install a non skid surface surrounding the area so we can turn this fountain on more often?

If you’re dealing with an injury caused by slipping and falling, consult this Help Center page which talks about safety precautions, what to do when an accident happens, and the legal liability associated with property owner/property defects.

About the Editors: Shapiro, Cooper Lewis & Appleton personal injury law firm is based in Virginia (VA), near the NE North Carolina (NC) border and handles car,truck,railroad, and medical negligence cases and more. Our lawyers proudly edit the Virginia Beach Injuryboard, Norfolk Injuryboard, and Northeast North Carolina Injuryboard as a pro bono public information service. Lawyers licensed in: VA, NC, SC, WV, DC, KY.

Originally posted at InjuryBoard by John Cooper

Slip, Trip or Fall cases: When Is A Hole Or a Condition Causing Personal Injury Open and Obvious?

Rick Shapiro — Wed, 31 Dec 2008 17:52:51 GMT

I wrote a full article about a recent federal court decision out of Richmond, Virginia (within the Federal court circuit over West Virginia (WV), Virginia (VA), North Carolina (NC) and South Carolina (SC)) where the federal judge denied a motion to dismiss a delivery driver's personal injury lawsuit against a Firestone Tire store, resulting from his injury when he tripped in a parking lot pothole. In a case called Cring v. BFS Retail and Commercial Operations LLC, the opinion by Judge Payne outlined the fact that under Virginia law courts are permitted to find contributory negligence on behalf of the injured victim when the hazard or condition was open and obvious, and with ordinary care, the condition/hole could have or should have been avoided by the injured person. The conservative Federal judge next addressed whether the injured delivery driver could be held negligent for simply failing to look down at the moment before tripping into a pothole. The federal judge observed that the Virginia Supreme Court stated that a jury must examine the size, location and visibility of defects or conditions to determine whether they are truly open and obvious to a personal injury victim. The Judge ultimately would not dismiss the suit and for a full article discussing this decision click here.

Originally posted at InjuryBoard by Rick Shapiro

Electrical Shock Injury In Hotel Shower Ends Commercial Pilot’s Career--Settlement Just Before Trial

Rick Shapiro — Tue, 08 Jul 2008 21:31:23 GMT

By: Richard N. Shapiro, Shapiro, Cooper, Lewis & Appleton, P.C., Va. Beach, VA

Our Plaintiff client was a 47 year old pilot/captain for a commercial airline who piloted a 737 to a Virginia international airport on June 30, 2005 . Before piloting a similar jet on the next morning of July 1, 2005 outbound, pilot and the crew stayed at the Virginia hotel routinely used by the airline crews. The pilot was in excellent health and had recently passed a thorough FAA physical examination, less than six weeks earlier. The next morning, our client the pilot was taking a shower in his hotel room and while washing his hair with his hands directly above his head, when he received a serious electrical shock which essentially froze him in the shower. With his hands still frozen above his head, he lost consciousness and fell out of the shower, suffering some contusions. He testified that his heart was racing and was measured at 180 beats per minute following the shock. Upon regaining consciousness, he immediately called the hotel operator to report that he had been “electrocuted” in the shower. The hotel dispatched a maintenance engineer to the room, who, after observing the light fixture above the shower told the pilot that the fixture “doesn’t belong in that environment,” and promptly called the front desk and shut down the room due to “electrical problems.” Pilot described the light fixture as an uncovered bulb in a ceramic based fixture that was flush mounted to the ceiling above the shower, protruding downwards. The hotel engineer disagreed, testifying it was a recessed “can” light fixture, only admitting that the flat plastic lens covers was missing, exposing the bulb to shower spray. He also admitted that the hotel had been having problems for the prior 2-3 months with the plastic covers of these light fixtures falling off and not having spare recessed light plastic covers available. The pilot notified management that he could not safely pilot the jet that morning, and rode in the jet’s jump seat. During the flight, he began experiencing difficulty with his left eye. He initially thought his sunglasses were smudged and indicated it was like looking through wax paper. He subsequently developed a left occipital headache. Numerous physicians subsequently confirmed that pilot suffered from left optic neuropathy, and although his vision was 20/20 in both eyes when tested for his FAA examination on May 17, 2005, his vision deteriorated immediately after the shock injury to 20/60 to 20/80 range in his left eye. When the jet landed on July 1, 2005 , pilot went to the local emergency and his documented complaints at that time included dizziness, numbness and tingling in his extremities, headaches and decreased left vision. He subsequently developed issues with fatigue and with balance and coordination. His immediate lack of visual acuity caused him to fail a mandatory FAA physical and he is no longer qualified to pilot any commercial aircraft. His physician’s testified that his injuries were permanent.

Plaintiff’s suit contended that the hotel negligently, knowingly left an open light fixture directly over the area where hotel guests would be showering and spraying water in violation of the National Electric Code (NEC), which has been adopted by the state of Virginia . Also, pilot filed an extensive memorandum of law prior to the final pretrial hearing asserting that the electrical shock evidence presented a classic res ipsa loquitor case allowing an inference of negligence against the hotel, and additionally arguing that the hotel wrongly failed to document or retain the electrical fixture, as no pictures or written inspection report were ever produced until over a month later-and pilot contended the fixture had been altered in the meantime. In the suit, we named over 10 experts, including neuro-opthamologists, neurologists, electrical experts, vocational and economic experts, the latter experts calculating earning capacity of around $250,000 annual salary, leaving over three million dollars in lost earning capacity. The hotel denied any negligence, denied that the pilot suffered any electrical shock, and claimed the pilot’s symptoms were magnified or caused by pre-existing conditions, and also listed a wide array of medical and liability defense experts.

Hotel/Innkeeper Liablity

In the year after we filed suit for our client, the Virginia Supreme court clarified that hotels are held to high standard of care applicable to common carriers, in the case of Taboada v. Daily Seven, Inc., 626 S.E.2d 428 (Va. 2006). In Toboada, the court stated:

We have held that neither the innkeeper nor the common carrier is an absolute insurer of the guest's or the passenger's personal safety…. Nonetheless, we have held that the duty of care imposed on common carriers is an elevated duty that requires them " `so far as human care and foresight can provide . . . to use the utmost care and diligence of very cautious persons; and they will be held liable for the slightest negligence which human care, skill and foresight could have foreseen and guarded against. Given the nature of the special relationship between an innkeeper and a guest, we hold that it imposes on the innkeeper the same potential elevated duty of "utmost care and diligence" [as applies to common carriers].

Taboada v. Daly Seven, Inc., 626 S.E.2d 428, 434 Va.2006) (emphasis supplied). Pilot asserted that the statements of the hotel’s maintenance engineer alone were proof that the hotel did not exercise its elevated duty of care to provide for a safe shower light fixture.

Res Ipsa Loquitor Evidence

While pilot’s electrical experts offered the theory that his shock occurred when his hand slightly grazed an exposed shower light bulb, pilot also argued for a res ipsa loquitor jury instruction which would supply an inference of hotel negligence from the circumstances alone. Res Ipsa is applicable to a narrow set of circumstances, and as outlined by the Virginia Supreme Court:

In order for the doctrine to apply in a given case, the instrument causing the injury must have been in the exclusive possession of the defendant, and the occurrence must have been of such a nature that it can be said with reasonable certainty that the accident would not have occurred in the absence of negligence on the part of the defendant. It must be further shown that the evidence of the cause of the accident is accessible to the defendant and inaccessible to the injured party.

Stein v. Powell, 124 S.E.2d 889, 203 Va. 423, 426 ( Va. , 1962) (denying application where child injured by shattered mirror accessible to other invitees).

Pilot contended at the final pretrial court hearing that his electrical shock injury was a classic res ipsa circumstance, and cited a number of analogous decisions: cases involving injuries inflicted … by steam, electricity, fire, gas, complicated industrial machinery, and other dangerous instrumentalities furnish the clearest instances of the use of the doctrine of res ipsa loquitur. Robison v. Cascade, 72 P. 3d 244 (Wash. App. 2003)(emphasis supplied) (applying res ipsa in electrical shock case involving a truck trailer loader); Kieffer v. Weston Land, Inc., 90 F. 3d 1496 (10th Cir. 1996) ( applying res ipsa in electrical shock case involving vending machine). Pilot noted that thousands upon thousands of hotel guests take showers in hotels daily, and it cannot be disputed that serious personal injury or death caused by electrical shock should never occur while a hotel guest is routinely shampooing their hair in a hotel shower. The pilot checked into his hotel room, discovered no apparent problem with the electrical system or the electrical power. Prior to turning over the hotel room to the pilot, the hotel’s cleaning personnel were the last persons to have access to the room and to have inspected it. There was never any suggestion by the hotel of a third-party tampering with the electrical source, or a third-party or the pilot tampering with the fixture over the shower, and supplying the overall electrical power supply is exclusively within the hotel’s control. The court made no ruling or finding on res ipsa loquitor at the final pretrial hearing, given that offering such an instruction would be dependent on the evidence admitted later at trial.

Missing Evidence Inferences

The hotel attacked the pilot’s electrical expert’s theories, and moved to exclude the expert opinions as unreliable and suspect, given that the pilot’s two experts did not conduct tests on what the pilot contended was the same light fixture, or under reliable similar circumstances. Pilot, in response, argued that the hotel completely failed to preserve or maintain the main, known material evidence (the light fixture, whether in the ceiling area or preserved with the entire fixture and its wiring apparatus). This is so despite its awareness from the very first hour after the incident that the pilot was shocked in their shower. The hotel admitted that the room remained out of use for well over a month, but it produced no pictures, inspection reports, or confirmation of what if anything was done to alter the fixture in the first days or weeks. The hotel contended no changes were made, but when pilot’s expert was permitted an inspection months later, pilot contended the fixture was entirely different.

Pilot argued that the limitations or less than ideal expert electrical evidence foundation was due to hotel’s failure to preserve relevant evidence, and pilot should not be penalized. Pilot cited to a similar circumstance which arose in an electrical shock case involving a bakery company employee who claimed electrical shock from a vending machine. Kieffer v. Weston Land, Inc & Coca-Cola, 90 F. 3d 1496 (10th Cir. 1996). Employees of the defendant claimed they checked the vending machine the same day and that neither relevant machine had any electric current flowing that could cause a shock. Id. at 1498. The defendant in Kieffer initially discarded the subject vending machine, then relocated it, but it did not have the electrical cord any longer and therefore was in a different condition. Id. at 1499. In the similar Kieffer case, defendants asserted the claim that the plaintiff’s electrical expert opinions were lacking and unreliable, but the court in Kieffer stated:

[o]bviously, had the plug not been removed from the machine, Dr. Oliver's [electrical expert] conclusions regarding the likelihood of shock in relation to a defective plug would have been either far more certain or possibly even unnecessary. The fact remains, however, that the missing evidence which created the need for the testimony which [defendant] now finds objectionable was caused by [defendant] itself. Defendant argues that the loss of evidence by a party does not allow a negative inference against that party unless it is shown that it acted in bad faith, citing Mason v. E.L. Murphy Trucking Co., Inc., 769 F.Supp. 341, 345 (D.Kan.1991) and Lewy v. Remington Arms Co., Inc., 836 F.2d 1104 (8th Cir.1988)…. Plaintiff was entitled to produce the relevant evidence that defendant removed the machine a few days after the incident and that when defendant produced it over a year later the plug was gone. Defendant offered an explanation for the missing plug, suggesting it was caught in the truck bed when the machine was taken to the dump, but the jury had the right to reject that explanation.

The evidence provided a factual basis for Oliver's [electrical expert] testimony about how an electric shock might have occurred. The district court correctly ruled that the jury was free to accept or reject the expert's opinion in deciding, based on the proof provided by plaintiff, whether defendant's Seven-Up machine was the source of his injury…..

The pilot also pointed to the Fourth Circuit decision in Silvestri v. Gen. Motors Corp., 271 F. 3d 583 (4th Cir. 2001) where the plaintiff failed to preserve the vehicle that was the basis of a product liability claim against GM. The Fourth Circuit there stated:

In the case before us, the conduct of the spoliator may have been either deliberate or negligent. We know that Silvestri's attorney knew that the vehicle was the central piece of evidence in his case against General Motors and that he had been reminded that this piece of evidence should be preserved or that General Motors should be notified. As it turned out, the vehicle was not preserved, and neither Silvestri nor his attorneys notified General Motors of Silvestri's claim until almost three years after the accident; by then, the evidence had been destroyed by the repair of the vehicle….

Id. at 593-594. In Silvestri, the 4th Circuit affirmed the harsh sanction of dismissal of the claim, and discussed lesser sanctions. Id. Pilot asserted that courts have a wide range of inherent powers to assure that the courtroom is not a forum to restrict the search for truth--well short of dismissing a claim or defense, and allowing pilot’s electrical experts to offer their electrical theories, supported by pilot’s testimony, was proper, and defendant’s motions to exclude should be denied. After hearing all the arguments, the District Court denied the hotel’s motions to exclude pilot’s electrical experts, and refused to dismiss the NEC negligence per se count of the complaint, but made no pretrial ruling on the impact of any missing evidence.

Judicial Settlement Conferences

The court ordered two settlement conferences: the parties were unable to settle the case prior to the final pretrial hearing, but at the second settlement conference, after the pretrial hearing decisions and about a week before trial, the parties settled the case for 1.5 million dollars, in exchange for full and complete settlement of all claims.

What we learned from this case, as the pilot’s lawyers, was that the Judge at the final pretrial hearings apparently agreed with our arguments that no hotel guest should suffer an electrical shock in a hotel shower--whether a pilot or any other hotel guest. At the hearing, one of the hotel’s lawyers explained to the Judge that one of the hotel’s defenses was that the pilot may have never suffered any shock. The judge poked fun at him, and sarcastically asked him whether he thought it might have been a bolt of lightning instead! The Judge later refused to exclude any of our electrical expert opinions, and subsequently the case was settled with assistance of a Magistrate Judge at the second settlement conference.

Originally posted at InjuryBoard by Rick Shapiro