Premises Liability

Court Finds that Recreational Use Statute Protected City in Lawsuit Stemming from Baseball Game Injury

March 28, 2017 | Lebowitz & Mzhen

Earlier this month, an appellate court in Rhode Island issued a written opinion in which the court had to apply the recreational use statute to determine whether the defendant city could be held liable for injuries occurring at a recreational baseball game. Ultimately, the court held that the city was entitled to immunity and that the plaintiff’s argument that the city had prior notice of the field’s dangerous condition was not able to be considered on appeal because it was not argued below.

The Facts of the Case

The plaintiffs in the case were the parents of a boy who was playing a recreational game of baseball in a park owned and operated by the defendant city. During the game, the plaintiffs’ son slid into home plate, and his ankle and lower leg got lodged under the plate. When their son tried to stand up after the slide, he broke his leg in two places.

The plaintiffs filed a premises liability lawsuit against the city, arguing that it was negligent in maintaining the baseball diamond. In a pre-trial motion for summary judgment, the city argued that it was entitled to immunity from the lawsuit under the recreational use statute.

Plaintiff’s Slip-and-Fall Case Dismissed Due to Failure to Comply with Expert Witness Disclosure Requirements

March 14, 2017 | Lebowitz & Mzhen

Earlier this month, a state appellate court issued a written opinion in a premises liability case brought by a woman who fell while on the defendant’s property. Because the plaintiff failed to disclose the names of her expert witnesses, the court held that the experts’ testimony was properly excluded and summary judgment appropriately granted.

The Facts of the Case

The plaintiff slipped and fell on a set of stairs at the defendant’s property. The details of the plaintiff’s fall were not at issue in the court’s opinion. However, in response to the plaintiff’s allegations, the defendant moved for summary judgment, arguing that the plaintiff’s case was insufficient as a matter of law.

After the defendant moved for summary judgment, the plaintiff presented two experts who planned to testify about the condition of the stairs as well as industry safety standards. The defendant objected to the two experts’ testimony because the plaintiff had failed to disclose them at an earlier time. Under state law, either party can demand that all parties involved in a lawsuit release the names of all potential expert witnesses. The defendant had done this earlier in the proceeding, and the plaintiff did not release any expert names. Normally, this issue arises in the context of trial, but here it was at the summary judgment stage.

Court Applies “Natural Accumulation” Rule in Affirming Dismissal of Slip-and-Fall Plaintiff’s Case

February 23, 2017 | Lebowitz & Mzhen

Earlier last month, an appellate court in Wyoming issued a written opinion applying the “natural accumulation” rule to affirm the dismissal of a plaintiff’s slip-and-fall lawsuit against a middle school. In essence, the rule prevents a landowner from being held liable for injuries occurring from the natural accumulation of snow or ice on their property. The court’s most recent opinion explained that the application of salt or snow-melt, while it alters the original condition of the snow, does not aggravate it.

The Facts of the Case

The plaintiff was a middle-school student. After P.E. class, the plaintiff and some friends encountered a large patch of ice on school grounds. The students took turns running and sliding across the ice, seeing how far they could go and performing various “tricks” as they slid. On the plaintiff’s second turn, he slipped and fell to the ground, breaking a tooth and fracturing his nose.

The plaintiff, through his parents, filed a premises liability lawsuit against the school, arguing that it was negligent in allowing the accumulation of ice or failing to clear the ice. The trial court disagreed, determining that the school could not be held liable for the natural accumulation of ice. The plaintiff appealed.

Premises Liability Case Arising Out of New Year’s Eve Apartment Complex Shooting Dismissed

January 3, 2017 | Lebowitz & Mzhen

Under the legal theory of premises liability, business owners have a general duty to ensure that the area accessible to customers is kept free from unreasonably dangerous conditions. When a business owner fails to take the necessary precautions to either remedy or warn visitors of a known harm, the business owner may be held liable for any injuries caused as a result.

One of the key issues in premises liability cases is whether the defendant landowner knew or should have known that the dangerous condition existed at the time of the plaintiff’s accident. If it is determined that the business owner was oblivious to the harm and that the lack of knowledge was reasonable under the circumstances, the plaintiff’s premises liability case will likely fail. A recent case involving a tragic shooting at an apartment complex illustrates how a defendant landowner’s lack of knowledge of the dangerous condition causing the plaintiff’s injury can be fatal to a plaintiff’s case.

Mitchell v. Ridgewood East Apartments: The Facts

Mitchell was visiting his aunt over New Year’s Eve, who lived at the defendant apartment complex. After midnight, Mitchell’s aunt went to bed, but Mitchell remained in the common areas of the complex, talking to other residents and guests. At around 2:55 a.m., Mitchell’s aunt heard shots and ran outside to find that Mitchell had been shot in the head.

Plaintiff’s Failure to Name All Defendants in Slip-and-Fall Case Results in Dismissal

December 23, 2016 | Lebowitz & Mzhen

Earlier this year, a state appellate court issued a written opinion in a premises liability case brought by a woman who had slipped and fallen on a property co-owned by two individuals and maintained by a condo association. In the case, Garant v. Winchester, the court ultimately dismissed the plaintiff’s amended petition naming the condo association in the lawsuit because it was filed after the applicable statute of limitations had expired.

The Facts of the Case

In August 2010, Mrs. Garant tripped and fell outside 18-20 Woodland Court in Lincoln, Rhode Island. Believing that her fall was precipitated by a dangerous condition on the property, Garant planned on filing a premises liability case against the two owners of the property. Garant was aware that the property was maintained by a condo association, and she set out to determine the specific association that was in charge of the maintenance at the location so that the association could also be named in the lawsuit.

Garant consulted with the insurance company that covered the property and was informed that the association in charge of maintaining the premises was named the Woodland Court Condo Association. Garant also hired a title examiner to search the Registry of Deeds for the name of the association. That search revealed that the name of the association was 18-20 Woodland Condo Association. Garant finally searched the Secretary of Commerce’s database for the name of the association and was unable to come up with a result matching her query.

The Summary Judgment Standard in Washington, D.C. Personal Injury Cases

December 16, 2016 | Lebowitz & Mzhen

The Washington, D.C. judicial system is designed to handle all of the disputes arising in the District and, at times, can get fairly backed up. In particular, cases that end up going to trial take up a lot of a court’s resources. For this reason, courts implement certain rules to ensure that only meritorious cases end up going to trial. The most common method by which cases get weeded out prior to trial is through summary judgment.

Summary judgment is a phase of the trial process in which a judge is asked by one party to enter judgment in favor of that party before the case gets presented to a jury. In Washington, D.C., in order for a judge to properly grant a party’s motion for summary judgement, the judge must determine that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”

Importantly, all reasonable inferences are resolved in favor of the non-moving party. This means that if a defendant moves for summary judgment, all matters of witness credibility and other potential unresolved inferences must be made in favor of the plaintiff. In other words, if the judge assumes everything the plaintiff claims is true, and the plaintiff is still not entitled to judgment, summary judgment in favor of the defendant should be granted. A recent premises liability case illustrates how summary judgment may be used by a defendant to get a case dismissed at an early stage.

Plaintiff’s Premises Liability Case Against Municipality Dismissed Due to Late Filing

December 2, 2016 | Lebowitz & Mzhen

Earlier this month, an appellate court in North Dakota issued a written opinion affirming the dismissal of a plaintiff’s premises liability case against a city because the case was filed after the applicable statute of limitations. In the case of Frith v. City of Fargo, the court rejected the plaintiff’s argument that a longer statute of limitations should apply because the condition that caused her injury was created by a third party rather than the city named in the lawsuit.

The Facts of the Case

The plaintiff was injured in July 2012 while rollerblading in a park owned and operated by the City of Fargo. According to the court’s opinion, the plaintiff was injured when she tripped over a soft patch of pavement that had recently been placed to cover up a crack. The paving had been completed not by a city employee but by a third-party independent contractor.

The plaintiff filed a lawsuit against the city only. She claimed that the city’s negligence in failing to deal with the hazard caused her injuries. The lawsuit was within three years of the accident, but the plaintiff failed to properly serve the city, so the initial case was dismissed. The plaintiff then refiled the lawsuit and properly served the defendant in October 2015.

Man Injured in Hotel Slip-and-Fall Accident Seeks to Hold Hotel Liable

November 8, 2016 | Lebowitz & Mzhen

Earlier this month, an appellate court in Kentucky issued a written opinion in a premises liability case involving a man who slipped and fell while trying to get into the shower at the defendant hotel. In the case, Goodwin v. Al J. Schneider, the court held that the lower court erred in dismissing the plaintiff’s claim for his own failure to take reasonable precautions in entering the shower. Specifically, the state’s high court held that the lower courts mistakenly determined that the defendant did not have a duty to protect Goodwin.

The Facts of the Case

Goodwin and his wife were staying at the defendant hotel for a conference. On the second day of his stay, Goodwin fell while he was entering the shower. Evidence presented at trial showed that the bathroom did have a hand rail to assist guests in entering the shower, but it did not have a bath mat. However, other rooms in the hotel had both a bath mat and a hand rail. Goodwin filed a premises liability lawsuit against the hotel, seeking compensation for the injuries he sustained in the fall. He claimed that the hotel should have provided additional protection and that the hotel’s failure to do so was negligent.

The trial court hearing the case granted the defendant’s motion for summary judgement, stating that the hotel did not have a duty to provide bath mats in all rooms and that the hotel is not “an insurer of a guest’s safety.” The court reasoned that a wet shower is an “open and obvious” hazard, and the defendant did not have a duty to remedy the hazard. The court of appeals affirmed.

Court Determines Homeowner’s Insurance Policy Covered Dog-Walking Injury

September 6, 2016 | Lebowitz & Mzhen

Earlier this month, a federal appellate court issued a written opinion in a case between a man injured while walking his friend’s dog and the dog owner’s insurance company. In the case, American Family Mutual Insurance v. Williams, the court determined that the injured party was not excluded from the homeowner’s insurance policy, so the insurance company was responsible to defend against the lawsuit.

The Facts of the Case

Williams was visiting his college friend, Van de Venter. When Van de Venter was getting ready to leave for work, he explained that his dog, Emma, would ring a bell by the door when she needed to go outside. He did not mention anything about walking Emma, only about letting her out.

At some point during the day, Emma rang the bell. Williams came downstairs and attached her leash to take her for a walk. As Williams was walking Emma, another dog in the neighborhood barked, attracting Emma’s attention. As Emma ran toward the other dog, she jerked the leash and Williams fell, sustaining a serious injury to his shoulder.

Premises Liability Case Dismissed for Plaintiff’s Failure to Prove Defendant’s Knowledge of Dangerous Condition

August 16, 2016 | Lebowitz & Mzhen

Earlier this month, a state appellate court issued a written opinion in a premises liability case brought by a woman who slipped and fell on a piece of watermelon in a grocery store. In the case, Edwards v. Hy-Vee, the court ultimately dismissed the case against the grocery store because the plaintiff was unable to prove that the defendant had knowledge of the dangerous condition prior to her accident. As a result of the case, the plaintiff will be unable to recover damages to help her cover her medical costs and related expenses.

The Facts of the Case

Edwards was with her daughter, shopping at a grocery store owned by Hy-Vee. On her way out of the store, she slipped and fell on what appeared to be a piece of watermelon. Less than 10 feet from where she fell, an employee of Hy-Vee was handing out samples of watermelon.

Edwards filed a premises liability lawsuit against Hy-Vee, arguing that the company either created the dangerous condition that caused her fall or had constructive knowledge of the condition but failed to do anything to remedy it. At trial, the court resolved both arguments in favor of the defendant, and Edwards appealed.