Published on:

Earlier this month, a state appellate court issued an opinion in the case of Vasilenko v. Grace Family Church. The case was brought by a parishioner against the church after the parishioner was seriously injured in a pedestrian accident when attempting to walk from a church parking lot to the church. The court determined that, although the injury in a premises liability lawsuit must normally arise on the property owner’s land to be successful, that isn’t always the case.

City StreetThe Facts of the Case

Grace Family Church was located on a busy five-lane road. Immediately next to the church was a parking lot. However, since the parking lot was small, it would often fill up. To accommodate the growing demand for parking spaces, the church contracted with a nearby business owner to use his parking lot as an overflow lot when the smaller main lot was full.

The church had volunteer parking attendants who would direct traffic from the main lot to the overflow low when the main lot was full. There were also parking attendants in the overflow lot, showing parishioners where they could park. Importantly, however, there were no attendants to help the parishioners cross the street to get to the church.

Continue reading →

Published on:

The Iowa Supreme Court recently released a decision affirming a lower court’s ruling in favor of the government defendant in a wrongful death case that was filed by the surviving family of a 10-year-old boy who was killed in a boating accident on a lake owned by the defendant, the state department of natural resources. The lawsuit alleged that the state agency was negligent by permitting a dredge pipe to be used and stored under the lake’s surface, which was a violation of state regulations and created a hazard for which the state should be held accountable. The most recent appellate opinion ruled that the plaintiff had no claim as a matter of law, and the defendant cannot be held liable for the boy’s death.

Boat DeckA Boy Dies after His Mom’s Boyfriend Ignores Warning Buoys and Crashes into an Underwater Pipe

The plaintiffs in the case of McFarlin v. Iowa are the surviving family members of a 10-year-old boy who was killed in a boat accident on an Iowa lake. According to the facts noted in the opinion, the boy’s mother’s boyfriend was operating a speedboat that the boy was riding in and failed to notice or comply with warning buoys that signaled the existence of a dredge pipe beneath the water’s surface. Instead of slowing down and going around the buoys as intended, the boat operator drove the boat into the dangerous area at about 30 miles per hour, crashing the boat into the submerged pipe. As a result of the collision, the boat’s engine disconnected from the back of the boat and flipped into the passenger compartment of the boat, resulting in fatal injuries to the child.

Continue reading →

Published on:

In most cases alleging that one party’s negligence caused another party’s injuries, the lawsuit is based on the legal theory of negligence. Before a negligence lawsuit is even permitted to go to trial, a judge must determine that a prima facie case of negligence exists. This is a question of whether, taking all evidence in the light most favorable to the plaintiff, the plaintiff has made out a bare-bones case. If not, the court is proper in dismissing the lawsuit before submitting the case to a jury.

Weathered FenceIn negligence cases, there are four elements that must be met:  duty, breach, causation, and damages. In other words, a plaintiff must establish that the named defendant violated some duty of care that they owed the plaintiff, and the plaintiff was injured as a result of that breach. A plaintiff’s failure to submit proof of any of these elements can result in the court dismissing the case at the summary judgment stage. This is exactly what happened to a husband and wife who sued a local park for damages after the husband injured himself while leaning on a fence.

The Facts of the Case

In the case of Wheeling Park Commission v. Dattoli, the plaintiffs were a couple who were attending a concert at Wheeling Park. The couple arrived too late to find seating for the event, so they ended up standing at the top of a hill near a fence. As the night went on, Mr. Dattoli looked for a place to take some of the weight off his legs, and he leaned against the nearby split-rail fence. However, as he did so, the fence collapsed, sending Mr. Dattoli down the hill. As a result, he injured his shoulder.

Continue reading →

Published on:

Whenever an accident occurs and a personal injury case is filed, there must always be a determination of who was at fault and whether any other parties were also at fault. In the simplest example, in a two-vehicle accident, one person may be 100% at fault and the other 0% at fault. However, these situations are rare. Often, there are multiple parties involved in the accident, and each party has some percentage of fault that can be assigned to them.

SkateboarderIn Florida, the legal doctrine that helps courts figure these situations out is called “comparative negligence.” Under a comparative negligence analysis, anyone injured in an accident can recover compensation from anyone else who was at fault. However, the person’s available damages will be reduced by their own percent at fault. So, for example, if a pedestrian was determined to have suffered $500,000 in damages but was 10% at fault for the accident that caused their injuries, the pedestrian’s total available recovery amount would be $500,000 minus $50,000 (10%), or $450,000.

Comparative negligence is seen as a “plaintiff-friendly” doctrine, since it still allows plaintiffs to recover for their injuries even if they are partially at fault, albeit at a reduced amount. Other jurisdictions across the U.S. employ much harsher rules. For example, consider the case of Bertsch v. Mammoth Community Water District, in which a father was prevented from receiving compensation for the death of his son because his son was engaging in the “dangerous activity” of skateboarding at the time of his fatal accident.

Continue reading →

Published on:

The Supreme Court of West Virginia recently released an opinion that overturned a circuit court’s decision granting an plaintiff a new trial on the issue of knee injuries he was alleged to have received in an accident with the defendant. The plaintiff will still be entitled to the verdict he received to compensate him for other injuries incurred in the accident, although his claim to compensation for his knee injuries was found by the state high court to be unsupported by the evidence at trial, causing the appellate court to reverse the circuit court’s decision to grant a new trial.

Knee X-RayThe Plaintiff Is Injured in a Rear-End Crash But May Have Had a Pre-Existing Knee Condition

The plaintiff in the case of Harnish v. Corra was a man who was injured after the defendant rear-ended his vehicle while he was waiting to make a left turn into a parking lot. The defendant admitted that he was at fault for the accident. After the crash, the plaintiff filed a personal injury lawsuit against the defendant, requesting over $25,000 in damages for medical expenses related to the accident. Over $15,000 of the plaintiff’s requested damages were attributed to a knee injury he had allegedly suffered in the accident.

At a jury trial, the defendant admitted that the accident was the cause of the plaintiff’s back and neck injuries, although he presented testimony that the knee injury was the result of a pre-existing condition and that the medical expenses related to the injury should not be awarded to the plaintiff. After the parties had presented their cases, the jury awarded the plaintiff damages for his neck and back injuries, but they declined to award any damages related to the alleged knee injury.

Continue reading →

Published on:

Earlier this month, an appellate court issued an interesting opinion holding that an insurance company was liable for injuries sustained by a student who was about to board a school bus that the company insured. Interestingly, the girl was injured as a result of a collision with a third-party vehicle, and there were no allegations that the school bus was involved in any physical accident. However, since school buses are viewed differently from other vehicles, the court determined that liability was present under the facts presented.

Bus StopState Farm Mutual Automobile Insurance Co. v. Buckley

In the case, State Farm Mutual Automobile Insurance Co. v. Buckley, the plaintiff was a young school girl waiting at the bus stop for the bus to take her to school. As the bus pulled up to her stop, the driver engaged the flashing lights, indicating that other motorists should stop. The bus driver then signaled for the girl to cross the road and board the bus. However, as she did so, another motorist disregarded the flashing lights and struck the girl, causing her serious injuries.

The girl’s family sought compensation for the girl’s injuries under the insurance policy that covered the bus. Specifically, the family filed a claim under the “personal injury protection” (PIP) coverage. PIP coverage, also known as “no-fault coverage,” is an add-on available to insurance policies that covers injuries to those involved in an accident regardless of fault.

Continue reading →

Published on:

Florida courts are already overburdened by the number of lawsuits filed in the state each year. To help curb the number of new lawsuits each year, and to ensure that medical malpractice cases are heard in a timely manner, the Florida legislature has set out a series of rules that limit the time in which a medical malpractice plaintiff can file a lawsuit against a medical provider. Of course, all cases have time limitations, but medical malpractice cases have some of the most stringent.

CalendarThese rules, called statutes of limitations, can act to completely prevent a victim of medical malpractice from recovering compensation for an act of medical malpractice. In fact, the statutes even prevent the claim from being heard in many cases. Therefore, it is extremely important that anyone who believes they have been a victim of medical malpractice reach out to a dedicated personal injury attorney as soon as possible to preserve their right to file a lawsuit and seek compensation.

Indeed, Florida medical malpractice plaintiffs must also comply with other procedural requirements, such as a pre-suit investigation to determine the validity of the claim. A plaintiff’s failure to comply with any of these requirements may result in early dismissal without the ability to refile the case. Indeed, that is exactly what happened to the family of a man who believed that the hospital treating their loved one was negligent in his care and then tried to cover up their mistake.

Continue reading →

Published on:

The Federal Court of Appeals for the Third Circuit just handed down a decision affirming a verdict in favor of the plaintiff in a birth injury lawsuit stemming from the use of Topamax by pregnant women. According to one news source covering the case, the young plaintiff in the case was born with a cleft palate as well as a cleft lip after her mother took Topamax during the first trimester of pregnancy. The jury’s verdict was split; $1.5 million was designated to go to the parents to help pay for the future care of their child, and $1.5 million was designated to go to the young girl herself to help compensate her for her non-economic damages.

Purple PillsThe Facts of the Case

Back in 2007, the plaintiff’s mother was taking Topamax for her migraine headaches. In December of that year, she learned that she was pregnant with the plaintiff. She discussed the use of Topamax with her doctor, and she was advised to taper off the use but not to stop taking the medication altogether.

When the plaintiff was born, she suffered from a cleft palate and a cleft lip. To this day, she has undergone 14 surgeries to help correct the injuries with which she was born. However, she still suffers from hearing loss and speech problems. Her parents told the court that she is teased and bullied by other children as a result of her appearance and speech.

Continue reading →

Published on:

Erick Santana & Michael CecereThis year’s Atlantic hurricane season is expected to be the most active since 2012. In light of this, attorneys at Cecere Santana, which focuses on cases relating to property damage and personal injury, stress people be prepared to protect not only themselves, but their assets.

“People need to prepare now,” said Erick Santana, a founding partner at Cecere Santana. “First and foremost, have a plan to protect you and your family. Don’t wait until it is too late to secure water, food and safety supplies. Once a storm begins, stay inside and ride it out.”

In regards to insurance and protecting assets in the event property is damaged or destroyed by a storm, attorney Michael Cecere lists the following three tips:

Published on:

Earlier this month, a state court in Indiana issued an opinion explaining how the summary judgment standard should be applied by trial courts when there is conflicting evidence presented to the trial judge. In the case, Siner v. Kindred Hospital Limited Partnership, the court explained that summary judgment is not appropriate when there is conflicting evidence regarding a material issue of the case.

CourtroomThe Facts of the Case

The plaintiffs in Siner were the surviving loved ones of a woman who had passed on after being placed in the defendant hospital’s care. The allegations involved the hospital’s refusal to provide the deceased with life-sustaining treatment. In short, since the hospital told the deceased’s loved ones that it was unwilling to provide life support in the event it was necessary, the plaintiffs decided to relocate their loved one, who died a short time after her relocation.

The plaintiffs had the case reviewed by a medical review board, which issued the following opinion:  “the defendants failed to comply with the appropriate standard of care, and their conduct may have been a factor of some resultant damages, but not the death of the patient.” The plaintiffs cited the report as evidence that the defendant was potentially liable for the death of their loved one.

Continue reading →