Washington DC Injury Lawyer Blog

Fraternity Members Face Vicarious Liability Lawsuits Over Fatal Tailgate Party Accident

February 6, 2014 | Lebowitz & Mzhen

Two new lawsuits seek to hold over eighty members of a Yale University fraternity vicariously liable for an automobile accident that killed one person and injured two. A fraternity member allegedly lost control of a U-Haul truck and struck several pedestrians outside a football game. The estate of the woman who died in the accident and one of the women who was injured had previously sued the national fraternity and the university. The national fraternity disclaimed responsibility, but the new lawsuits suggest that it left the local fraternity chapter and its members exposed to vicarious liability claims. Personal injury claims against organizations lacking formal legal structure, based on actions of their members, can present difficult questions of how to determine and apportion fault.

The accident occurred on November 19, 2011 at a tailgate party hosted by the Yale chapter of Sigma Phi Epsilon (SigEp) at the annual football game against Harvard. A fraternity member was transporting beer kegs in a U-Haul truck to the tailgate, when he lost control of the vehicle. One person, thirty year-old Nancy Barry, was killed, while Yale student Sarah Short and another woman were injured. The school reportedly responded by putting new restrictions on tailgate parties and banning kegs at athletic events.

Short and Barry’s estate each filed suit in 2012 against the national SigEp organization, Yale University, U-Haul, the driver of the truck, and others. Each lawsuit claimed several million dollars in damages. They alleged that the national fraternity was liable because the members who were involved in the accident were acting as its representatives. The lawsuits reportedly foundered, however, when the Richmond, Virginia-based national SigEp organization stated that it had not officially sanctioned the tailgate party, and its insurer disclaimed all responsibility for the Yale chapter.

DC Appellate Court Affirms that OSHA’s Hazardous Material Regulations Do Not Preempt Personal Injury Claims Under State Law

January 28, 2014 | Lebowitz & Mzhen

The D.C. Circuit Court of Appeals rejected a challenge by the American Tort Reform Association (ATRA) to recent changes made to a federal regulation affecting hazardous materials. The Occupational Safety and Health Administration (OSHA) amended its hazard communication (HazCom) standard in March 2012. ATRA claimed that OSHA overstepped its authority, but the court disagreed. ATRA v. OSHA, No. 12-229, slip op. (D.C. Cir., Dec. 27, 2013). While the case involves a range of complex questions of regulatory law, the bottom line is that the ruling is good for personal injury plaintiffs. The HazCom standard mandates labeling and other warnings about materials known to pose health risks to workers and consumers. The court affirmed that it does not preempt state tort law, meaning that it does not prevent plaintiffs from recovering damages in a suit for injuries brought under state law.

OSHA has authority under the Occupational Safety and Health Act to promulgate regulations promoting workplace safety, but these regulations may not supersede or preempt state law claims for injuries or wrongful death. 29 U.S.C. § 653(b)(4). The HazCom standard, 29 C.F.R. § 1910.1200, requires classification of known hazards associated with exposure to chemical products and disclosure of those hazards to workers. This disclosure takes the form of labels placed on chemical containers and “safety data sheets,” along with programs for providing this information to employees.

Since the HazCom standard was first introduced in 1983, companies have had some leeway as to the format of the labels, but in 2012, OSHA issued a new rule standardizing all labels and data sheets nationwide according to the United Nations’ Globally Harmonized System of Classification and Labelling of Chemicals. It stated that the rule would preempt state and local laws and regulations relating to labeling requirements, but not state law tort claims, such as failure to warn and products liability.

Lawsuit Against District Alleging Failure to Supervise Group Home Resident May Proceed, Court Rules

January 21, 2014 | Lebowitz & Mzhen

The U.S. District Court for the District of Columbia partly granted and partly denied a motion to dismiss brought by the defendant in a lawsuit alleging failure to supervise a group home resident. Colbert, et al v. District of Columbia, et al, No. 1:13-cv-00531, opinion (D.D.C., Dec. 13, 2013). The plaintiff sued the District of Columbia and a private contractor operating a group home, asserting various tort claims and a constitutional claim after her daughter, a developmentally disabled woman, became pregnant while in the custody of the District. The court declined to dismiss the suit outright, but it dismissed the constitutional claim without prejudice, giving the plaintiff an opportunity to amend her complaint. If the court dismisses that claim with prejudice, it may lose subject matter jurisdiction over the remaining claims based on DC law.

The plaintiff’s daughter, identified in the court’s opinion as KC, was hospitalized at the District’s request in the fall of 2008. A psychological assessment determined that KC needed 24/7 care and supervision, so she went to live at a group home operated by a contractor, Total Care Services, Inc. According to the plaintiff, KC had a history of sexual abuse and neglect, a history of failing to take her medication consistently, and mental impairment.

Total Care and the District were aware of KC’s history and how it affected her condition, the plaintiff claims, but they allegedly allowed her to have unprotected and nonconsensual sex with multiple individuals. The plaintiff does not appear to claim that any employee of either Defendant participated in sexual activity with KC. KC became pregnant and gave birth to a girl named TC, who was born prematurely in April 2011. The plaintiff was awarded sole custody of TC, but she was born with significant health problems and required frequent surgeries and hospitalization. TC died nine days after her first birthday.

Federal Government Sues Contractors in Washington DC Court Over Allegedly Defective Material Used in Body Armor

January 14, 2014 | Lebowitz & Mzhen

A whistleblower lawsuit accuses several government contractors of providing material used in bulletproof vests to law enforcement agencies around the country, despite allegedly knowing about defects in the material that caused it to degrade over time and offer reduced protection. The federal government intervened in the lawsuit, and recently obtained the court’s permission to amend its complaint. United States ex rel. Westrick v. Second Chance Body Armor, Inc., et al, No. 1:04-cv-00280, mem. op. (D.D.C., Dec. 30, 2013). The suit is based on the federal False Claims Act (FCA), so it does not expressly assert products liability claims for injuries allegedly caused by defective vests or body armor. FCA cases can benefit people who have suffered injury due to design, manufacture, or marketing defects by identifying and exposing evidence that helps their cases.

The U.S. District Court for the District of Columbia described the background of the case in an order denying a motion to dismiss brought by several defendants. United States ex rel. Westrick v. Second Chance Body Armor, Inc., et al, 685 F.Supp.2d 129 (D.D.C. 2010). In 1996, Second Chance Body Armor (“Second Chance”) entered into a contract with Toyobo, a Japanese company that manufactures textiles and fibers. Toyobo supplied Second Chance with Zylon, a synthetic fiber touted as durable, long-lasting, and heat-resistant. Second Chance manufactured Ultima and Ultimax bulletproof vests using Zylon, marketing them as the “world’s thinnest, lightest, and strongest armor” with the “world’s strongest fiber.” Id. at 132.

The two companies allegedly became aware in 1998 that Zylon fibers experienced significant degradation after “exposure to light, heat, and humidity,” id., but they did not issue warnings about their findings or recall any products. Second Chance discontinued selling vests made with Zylon, notified purchasers of the problem, and urged removal of Zylon vests from service after two police officers were killed in June 2003 when bullets pierced their vests. A study by the U.S. Department of Justice (PDF file) released in 2005 found that only four out of sixty armors met all of its performance standards in ballistics tests, and concluded that the chemical breakdown of Zylon fibers was the likely cause of the performance problems.

DC Court Grants Partial Summary Judgment for Plaintiff in Police Brutality Case After Officer Pleads Guilty to Assault

January 7, 2014 | Lebowitz & Mzhen

A DC federal judge granted a plaintiff’s motion for partial summary judgment in a case alleging that two Metropolitan Police Officers used unreasonable and unnecessary force against him. Jenkins v. District of Columbia, et al, opinion (D.D.C., Dec. 18, 2013). One of the defendants pleaded guilty to two counts of misdemeanor assault in a separate criminal case, served a brief jail sentence, and resigned from the police department. The plaintiff then moved for partial summary judgment as to that defendant’s liability for excessive force. The court found that the factual proffer included in her guilty plea included enough material facts to bar her from denying liability for one of the two alleged assaults.

According to the court’s opinion, the plaintiff encountered Officer Kisha Coley while walking on Georgia Avenue NW during the early morning of March 27, 2010. She ordered him to “move on,” but continued to follow him. They got into a verbal argument, and although the plaintiff says he was not behaving in a threatening manner, she struck him in the back of the head with a metal baton. The plaintiff ran towards a police cruiser driven Officer Rodney Fitts, who ordered the plaintiff against the rear of the vehicle with his hands on the trunk. Officer Coley swung the baton, hitting the plaintiff in the hand and Officer Fitts in the knee. She then hit the plaintiff again with the baton. The plaintiff received treatment for injuries to his head, right wrist, and left hand.

Officer Coley was charged with assaulting the plaintiff and Officer Fitts. She pleaded guilty to two misdemeanor assault counts and was sentenced to six days in jail plus a year of probation. The plaintiff sued Officer Coley, Officer Fitts, and the District of Columbia in D.C. Superior Court. After the case was removed to federal court, the plaintiff filed a motion for partial summary judgment as to Officer Coley’s liability on two causes of action: excessive force in violation of the plaintiff’s Fourth Amendment rights, and retaliation in violation of his First Amendment rights.

Corporate Elevator Responsible for Causing Injury Presents Precarious Issue for Determining Liability

December 26, 2013 | Lebowitz & Mzhen

A case where an individual was harmed as a result of an elevator unexpectedly falling several floors afforded a Virginia federal district court the opportunity to examine the concept of res ipsa loquitur, and whether it applied to the plaintiff’s personal injury claim against two corporate defendants.

In the case, McGriff v. GRAMERCY CAPITAL CORP., Dist. Ct., ED Va. (2013), the plaintiff boarded the elevator on the twelfth floor of a corporate building, intending to travel up one floor. However, once the plaintiff boarded the elevator, it suddenly and violently fell several floors, causing significant injury to the plaintiff.

The building is owned by one of the defendants, which is in turn owned by the other defendant named in the lawsuit. The defendants leased a portion of the building to a third party, not named in this suit, who contracted with a separate company, which contracted with yet another company for the maintenance of the elevator.

Supreme Court Sides with Plaintiff in Armed Forces Medical Malpractice Lawsuit

December 17, 2013 | Lebowitz & Mzhen

Earlier this year, the U.S. Supreme Court reached a decision potentially relevant in any lawsuit dealing with medical malpractice committed by doctors within the Armed Forces.

The case, Levin v. US, 133 S. Ct. 1224 (2013), dealt with a veteran who suffered injuries as a result of cataract surgery performed at the U.S. Naval Hospital in Guam. Just prior to the surgery, the plaintiff revoked his consent to the surgery, due to his concerns with equipment in the operating room. The surgery went ahead anyway, which resulted in his injury. He thus filed suit under the FTCA; however, as an intentional act, rather than a negligent one, the ninth circuit ruled that this case did not fall within the FTCA’s parameters, leading to this appeal to the Supreme Court.

The court engaged in an extensive discussion regarding Congress’s history of enacting agency-specific causes of action, and then reverting back to a general schema for the FTCA. Regarding medical claims, Congress passed the Medical Malpractice Immunity Act in 1976, which is commonly known as the Gonzalez Act. That Act, which is controlling in this case, makes claims against the United States under the FTCA the “exclusive” remedy for injuries resulting from malpractice committed by medical personnel of the armed forces and other specified agencies, and was thus the controlling statute for this lawsuit.

Kroger Green Bean Slip & Fall Case Demonstrates Considerations for whether Personal Injury Cases Remain in Federal or State Court

December 10, 2013 | Lebowitz & Mzhen

Many times in personal injury lawsuits involving corporate defendants, an issue will arise as to whether the claim properly belongs in federal or state court. Defendants who maintain offices within different states than where the accident occurred may prefer federal court for many reasons. However, removing a lawsuit to federal court can only occur in one of two scenarios.

The first is when there is a federal issue involved. This means that the underlying cause of action arises out of some federal law or right that has been violated, such as a constitutional right, or in personal injury cases, those claims arising out of the Federal Tort Claims Act, for example.

The second scenario arises when the underlying issue arises out of what would otherwise be considered a state law matter, but the amount in controversy exceeds $75,000 and there is diversity of citizenship– meaning that the plaintiffs and defendants are residents of different states. For purposes of these types of cases, there must be complete diversity, which occurs only “when no party shares common citizenship with any party on the other side.”

Maryland High Court Sides Against Parents, Upholds Liability Waiver, in Case involving 5 Year Old Seriously Injured in Store’s Play Area

December 3, 2013 | Lebowitz & Mzhen

The Court of Appeals of Maryland, Maryland’s Highest Court, recently handed down a landmark decision in the field of liability waivers and negligence lawsuits concerning injured minors.

The case, BJ’S WHOLESALE CLUB, INC. v. Rosen, Md. Ct. App. (2013), dealt with a scenario every parent dreads. In the case, plaintiff had signed a consent form/liability waiver, waiving any potential future negligence claims and indemnifying the store, on behalf of his minor children, which allowed them to play in the free supervised area of a BJ’s store, while their parents shopped.

Some 15 months after the waiver was initially signed, plaintiff’s five year old son fell off of a play structure animal, and hit his head on the floor, which was concrete covered with a thin layer of carpeting. As a result, he suffered a head injury, which ultimately required a craniectomy for evacuation of the epidural hematoma that developed.

D.C. Court Dismisses Consumer Product Lawsuit for Lack of Standing

November 27, 2013 | Lebowitz & Mzhen

The U.S. District Court for the District of Columbia handed down a case earlier this year, Johnson v. QUAKER OATS COMPANY, Dist. Court, Dist. of Columbia 2013, in which it reiterated the requirements regarding standing in order to bring a lawsuit.

The plaintiff filed a lawsuit against the Quaker Oats Company for allegedly misleading him “about the nutritional and health qualities of its chewy granola bars and instant oatmeal products that contain partially hydrogenated oil.” The plaintiff claimed that the defendant’s “wide-spread marketing campaign” touting the nutritional value of those products between November 1, 2005, and November 2010 “caused” him to pay a higher price for the products that he allegedly purchased from “various individuals” or “from a vendor in the District of Columbia.” He filed the lawsuit under the District of Columbia Consumer Protection Procedures Act, claiming damages in excess of $90,000.

The Quaker Oats company filed a motion to have the case dismissed under the Federal Rule of Civil Procedure 12(b)(1), for lack of jurisdiction on the ground that plaintiff lacks standing, and under Rule 12(b)(6) for failure to state a claim upon which relief can be granted.