It’s almost slip and fall season again. Also known as “winter”, slip and fall season generates a lot of fractured arms, wrists, ankles, and noses. What does a leaf have to do with all this? Well, if you fall in a hole in the sidewalk, on the street, or trip on a hole due to a missing sewer or water utility line covering, there are several defenses that will be a part of any lawsuit defense. The defense typically and rightly will raise the issue of whether you were looking where you were going? Lawyers will argue that the defect you fell in was open and obvious. There are multiple ways to deal with this problem. Was the hole actually open and obvious? I have had people call me inquiring about whether they have a case, but when they say that they were watching a video and fell in a hole, I turn them down. On the contrary, what happens if you were walking along and encountered a decent sized hole, but the hole was obscured by leaves? That makes it not open and obvious, right? Yes. As a result, anything obscuring a pedestrian’s vision of a hole or defect is powerful evidence for the plaintiff. There are innumerable other examples of things that obscure open and obvious defects. Shadows and darkness at night obscure most holes and defects unless there is a lamppost overhead. Rain obscures defects when it fills in a hole. Taking immediate photos of holes, defects etc. makes a big difference in these cases. I have had good success when clients photo the ice and snow, or leaves, or rain filled holes. Failing to do this makes a strong case weaker, but not a non-starter.
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WHO LIKES ME LEAST?
Posted on October 31, 2022 in Case Matters
This is not a popularity question because that line is too long. Nope. Where is your average personal injury lawyer least well received? I have found large property managers or landlords are probably those who like me the least. I have been to cocktail parties or chamber of commerce where I introduce myself and my professional work and the conversation just stops cold. It is a routine occurrence at this point.
So, why does a commercial landlord dislike me and my brethren? It is fairly simple. Business-people hate paying for insurance and perceive all slip and falls on their property as frivolous or filed by money hungry poor people, who don’t take personal responsibility for their actions. In truth, while there is always an element of personal responsibility that drives down slip and fall settlements, the secret to the landlord’s animus is that they could have avoided their sidewalk decaying, their walkways uncleared, etc. with the application of a little bit of money. When their conduct is indefensible, they get upset. Nobody likes to sit for a deposition. It is even worse when you are the property manager and your failures are just startlingly obvious.
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THE LAW OF WAR
Posted on October 31, 2022 in Case Matters
There is a law of war? Who knew. In college, I read an interesting book called Just and Unjust Wars by Michael Walzer, who is a history professor. The book addressed the somewhat unwritten rules of war that unfortunately has persistent relevance to this day in light of Ukraine’s situation. Russia seems to persist in targeting civilians. Walzer is adamant that the Rules of War, such as they are, do not permit attacking civilians as a mechanism of war. It is okay to shoot combatants but not non-combatants. Walzer opines that it is a violation of the Rules of War to shoot an opposing soldier, who is merely bathing during wartime, but that seems a close call to me. Another interesting aspect of the book is a discussion of rules regarding reprisals. Reprisals are essentially a response in kind to aggression by the opponent. So, if the Palestinians killed an Israeli soldier on patrol, Walzer would permit the Israeli army to destroy a convoy of Palestinian militants. But, it would not be permissible to kill civilian Palestinians or to target a hospital.
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FOX News, Quack Treatments, and the Law
Posted on October 18, 2022 in For Lawyers
If you are interested in how far down a rabbit hole Fox News can send you, kindly see the attached Shoemaker v. UPMC case. Our Superior Court had to take its time and overlook routine procedures to make the point that just because you want a treatment to be given to you, the Hospital does not have to give it. In other words, let the doctors practice medicine as we have traditionally done here based upon evidence and research. If you would like to use Fox News endorsed treatments, go somewhere else. The facts of Shoemaker are sadly nutty. Mr. Shoemaker, in December of 2021, developed worsening covid. His vaccination status is unstated, but let’s assume he was unvaxxed. He got worse and worse and was placed into the UPMC ICU on a ventilator. His spouse demanded that he be given ivermectin, which is used for deworming horses. I give my dog ivermectin every month for heartworm. It is dipped in a nice meaty flavoring and my dog loves it. I cannot catch heartworm, so I abstain. Anyway, Mr. Shoemaker was in such distress that his healthcare power of attorney was making decisions for him. They went and found a New York lawyer and a local doctor to prescribe ivermectin. But, since Shoemaker was in UPMC hospital, the hospital said you cannot administer meds here that are not approved by modern medical guidelines. Essentially, UPMC said, we are not a vet and you cannot give this drug on our premises.
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Charissa Thompson and the Left Turn Crash
Posted on October 18, 2022 in Auto Accidents
So, NFL sideline reporter and commentator was in a bad car crash recently. She happens to also be a spokesperson for Mercedes and was in one of their sedans. As you may see from photos, all her air bags went off following a crash in which an oncoming car turned left across her path and she had the right of way.
In Pennsylvania, the law on this is as follows: § 3322. Vehicle turning left.
The driver of a vehicle intending to turn left within an intersection or into an alley, private road or driveway shall yield the right-of-way to any vehicle approaching from the opposite direction which is so close as to constitute a hazard.
Left turn cases usually make good personal injury cases. Essentially, when you are driving along minding your own business and an oncoming driver turns across your lane of travel there is going to be a big impact because you had the right of way and no warning that there was about to be a car in your way. So, you are doing about 35mph and just come to a complete stop impaling the other car.
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The Single Most Litigated Injury In Personal Injury Practice
Posted on October 11, 2022 in Auto Accidents
Lower back pain resulting from a car accident or slip and fall is easily the most litigated issue in my experience. Why is this? Insurance companies’ business model is to collect premiums and avoid paying claims. The cause of lower back pain is often ripe for debate in the view of insurers. Why? Well, most people’s spines degenerate as they age. So, a 20-year-old spine will look a lot different than that same person at age 65. How different is very dependent upon the person and their activities. Often, your average construction worker will have a more degenerated spine than your sedentary office worker. Most doctors will also tell you that you may have no problems with your back, but have a very concerning MRI scan. Others with no MRI problems will have severe back pain. Basically, the medical community has a lot of solutions to back problems, but our understanding of what causes back pain and when is still evolving.
Therefore, when you are in a car crash and have a history of back pain, however minor, the insurer will inevitably blame your prior back history for the pain and say it is wholly unrelated to the car accident. The plaintiff’s lawyer will argue that you had one episode of back pain seven years ago and it’s clearly not contributory to your pain in contrast to getting t-boned by a range rover. Alternatively, some people have had prior injections for spine issues, but are now in need of a fusion. There are all varieties of back pain complaints following car accidents. Do you have a disc bulge or herniation. Is it new compared to old MRI’s if you had ones. Does the back pain go away with physical therapy or injections? Regardless of outcome, the defense doctor will always blame your current back pain on your degenerative disc disease or old age. Even if you are 40 years old and have no history of back pain. That is what the defense doctor is paid to do.
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