Category: Personal Injury Law

‘Recreational immunity’ Does Not Protect Contractor From Lawsuit

July 7, 2018

In many states, landowners and their agents cannot be sued for deaths or injuries on property they have opened to the public for recreational activities like swimming, hiking, fishing, camping, and horseback riding.  This is known as “recreational immunity”, which only applies if the landowners open the property to the public free of charge.  The definition of an “agent” is often unclear, but a recent Wisconsin case gives some guidance.

In that case, a landowner hired a contractor to trim trees along a lakefront path it had opened to the public.  A member of the tree-trimming crew cut a large branch from a tree that landed on Jane Westmas, who was walking on the path with her son.  She was fatally injured.  Her husband, who was also her estate administrator, sued the tree company, claiming its carelessness caused her death and caused emotional distress to their son, who saw his mother die.

The contractor argued in court that because it was an “agent” of the property owner, the Wisconsin recreational immunity law protected it from responsibility.  A lower court judge agreed and dismissed the case.

However, the Wisconsin Supreme Court reversed the decision, finding that because the property owner did not directly control the contractor’s means and methods, the contractor did not count as an “agent” who was protected by recreational immunity.

Of course, the application of these concepts of recovery or defenses may work differently in Virginia than they do in Wisconsin.  In many cases, there may be something a landowner may have done or not done that constitutes negligence on his or her part, which would allow for recovery by an injured party.  If you want to learn more, contact attorney Harry F. Bosen, Jr.

Bars, Restaurants, and Hotels Can Be Held Liable For Patron Violence

June 8, 2018

Many states have “dram shop” laws that hold bars, clubs, and restaurants responsible for harm that occurs when they over-serve alcohol to customers.  Commonly, these cases are based on a bartender serving too many drinks to a customer, who then drives away drunk and hurts someone else.  The injured party can hold the driver accountable.  Often the driver does not have enough insurance to pay for all the harm.  So dram shop laws let the victim hold the establishment accountable too.  Dram shop laws can also cover situations where customers are over-served and engage in drunken, violent attacks on other patrons, employees, or innocent bystanders.

One recent case involved a Michigan woman partying in downtown Grand Rapids, who started her night at a now-closed bar called McFadden’s.  At McFadden’s, she reportedly drank five strong alcoholic drinks within ninety minutes.  She left McFadden’s to drink at another bar and then returned to McFadden’s later the same night.  After using the restroom the restroom at McFadden’s, she stepped outside and sucker-punched a woman who she mistakenly believed had been dancing and flirting with her husband.  The victim fell to the ground, hitting her head on the pavement.  The victim suffered a broken nose and a brain injury.

The victim in this case sued three parties:  the attacker, McFadden’s, and the second bar where the attacker had been drinking.  The second bar settled.  McFadden’s fought the case, arguing that the situation was not its fault because it was not the last place to serve the attacker (There is a “rebuttable presumption” under Michigan law that an establishment is not responsible if it was not the last place to serve the wrongdoer). However, McFadden’s had very little testimony to counter evidence that the attacker was already visibly intoxicated when they continued to serve her.  A jury found the bar at fault, awarding substantial damages to the victim.

Another example recently came from Minnesota.  In that case, two men who had already been drinking met at a bar in Minneapolis.  While the bartender on duty that night claimed the two men only had a beer or two each, surveillance video showed them drinking shots after they had already been there for a couple of hours and were getting surly and unruly.  The two men ultimately caused a major disturbance, with one of them, Nicholas Anderson, throwing a punch at the manager, jumping on the manager’s back, and putting the manager in a headlock.

Food-runner Maxwell Henson came to the manager’s aid.  As Henson and the manager tried to escort Anderson out, one of them tripped, sending all three to the ground.  Henson struck his head on the pavement and suffered a fatal injury.  When his family sought to hold the bar accountable under the state dram shop law, a trial judge dismissed the case, saying Anderson’s intoxication did not directly cause Henson’s death.  However, a state appeals court reversed the decision, finding that the bar’s over-serving of Anderson “amplified the risk” that Henson assumed by coming to his manager’s aid.  Now Henson’s family can bring their case in front of a jury.

A third case from Rhode Island arose when staff at the Omni Providence Hotel kicked out a large group of youths who had been partying loudly in a guest’s room, disturbing others.  The group left the premises, but later returned to the hotel driveway with beer, and engaged in rowdy behavior as the valet watched.  Then the group harassed a passerby, threatening and shouting racial epithets at him.  Later they rushed into the lobby and attacked a random guest, punching, shoving, and kicking him, breaking the guest’s arm.

When the guest sued the hotel, a federal district judge dismissed the case, ruling that this spontaneous attack by third parties was “unforeseeable” and thus not the hotel’s fault.  However, the appellate court reversed, deciding that while the hotel could not have foreseen the attack at the time it ejected the eventual attackers, it could have foreseen the attack when they returned.  Thus, the court ruled, the victim’s case could proceed to trial on the issue of whether the hotel should have done a better job of protecting him.

Virginia’s dram shop laws are generally more favorable to bars than laws in other states.  Nevertheless, if you have been injured by a violent attacker who may have been over-served by an establishment selling or providing alcohol, contact attorney Harry F. Bosen, Jr. to discuss your case.

Liability Waiver Unenforceable Against Spanish Speaker

May 8, 2018

Anyone who has visited a family entertainment center, like a trampoline park, indoor rock-climbing facility, or bouncy house, has probably signed a liability waiver agreeing that they cannot hold the facility accountable for any injuries they or their family may suffer.  Alternatively, they may have agreed to take their claim to “arbitration”, a private proceeding in which a “neutral” third party hired by the facility will resolve the dispute with no right of appeal.  However, these waivers are generally not enforceable in Virginia.  So if an injury occurs at one of these facilities, the injured party should still contact an attorney for a case evaluation.

A recent example comes from Massachusetts.  Elmer Cruz took his 15- and 8-year old sons and his 13-year-old niece to Sky Zone, an indoor trampoline park north of Boston.  Cruz, an immigrant from El Salvador, reportedly could not read or write in English.  So his 15-year-old son signed Sky Zone’s liability waiver, which consisted of typing information into a computer and hitting a button.  The boy did not attempt to explain to his father what he was doing, nor is it clear that the boy understood the legal significance, because he apparently only told his father that they needed to “go to the computer” before they could enter the facility.

Once inside the park, Cruz broke his ankle, necessitating several surgeries and leaving him unable to work for two years.  He and his wife sought to hold Sky Zone responsible.

Sky Zone tried to get the case dismissed, citing the waiver and arguing that even if Cruz had a claim, he agreed in the waiver that any dispute would be decided by a private arbitrator.

However, a trial judge ruled that the case could go to trial.  According to the judge, Sky Zone presented no evidence that Cruz understood the waiver, gave his son the authority to execute it on his behalf, or agreed to the terms on his own by entering the facility after his son put their information into the computer.  As a result, Cruz will get his day in court.

If you have been injured in Virginia after signing a liability waiver, do not presume you have no recourse for recovery!  Contact attorney Harry F. Bosen, Jr. for a free case evaluation.

‘Soverign Immunity’ Does Not Shield ‘Gross Negligence’

January 8, 2018

A homeowner in Michigan could hold a utility worker accountable for “gross negligence” that resulted in her home burning down, a Michigan appeals court recently decided.

The worker, who was an employee of the Board of Water and Light, a city-owned utility company in Lansing, was working on a house next door to the home of Cora Lee Hobbs-Jackson.  The worker wanted a drink of water, and tried to get water from an outside water spigot on Hobbs-Jackson’s house, but the spigot was frozen.  The worker then used a gas blowtorch to thaw it.  The blowtorch’s flames set Hobbs-Jackson’s house on fire, destroying the building and all the possessions in it.  Hobbs-Jackson was not home at the time.

Hobbs-Jackson took the worker and the Board of Water and Light to court, seeking compensation for her losses.  Both defendants claimed they were shielded from responsibility by “sovereign immunity,” a legal doctrine under which state, city, and town entities cannot be held responsible for harm caused by negligence (lack of reasonable care) in carrying out their duties.  A trial judge agreed and dismissed the case.

However, the Michigan Court of Appeals decided the worker could be held responsible because the use of the blowtorch was considered “gross negligence” — in other words conduct so reckless that it showed an absolute lack of concern for the possibility of harm — and governmental immunity did not apply.

The court ruled that the Board was still immune from suit because it was serving a public function, rejecting Hobbs-Jackson’s argument that the Board was making enough money to generate an actual profit rather than just sustaining itself.

In addition to gross negligence, Virginia offers additional avenues of recovery against governmental entities.  In Virginia, willful or wanton negligence by a governmental entity, its contractors, employees, and agents are also excluded from sovereign immunity protection.  If you have been injured by a governmental entity, including its employees, contractors, and/or agents, contact Virginia attorney Harry F. Bosen, Jr. for a free case evaluation.

Stadium Owner May Be Liable For Fight In Men’s Room

October 21, 2015

A man who was injured by a fellow hockey fan in a drunken fight in a rest room at a Boston Bruins game can sue the stadium owner and its security company, a judge recently ruled.

John Foley was apparently trying to defuse an argument between a friend of his and another man when the fan approached, screaming and swearing, and injured Foley.

Foley sued, claiming that if stadium security had been properly trained and staffed, it could have intervened in time to prevent his injuries. The stadium owner argued that this wasn’t true, and that it was impossible to fully guarantee everyone’s safety throughout the arena.

The judge observed that hockey is a violent sport with a history of attracting intoxicated fans, which means the stadium owner could have foreseen that there might be incidents like this one. The judge said it should be up to a jury to decide whether the stadium’s security measures were adequate under the circumstances.

In Roanoke County, Montgomery County, Blacksburg, Roanoke City, and the City of Salem, venue owners can also be liable for maintaining security.

Parents, Party Hosts and Others Might Be Responsible For Guests’ Drinking

August 21, 2015

If you or someone you know has been injured by a drunk driver in Roanoke City, Roanoke County, or Montgomery County, you might know that you may be able to sue the driver for damages. You might also know that if the driver had been drinking at a bar, and the bar kept serving the person even though it should have known he or she was drunk, the bar might be liable, too.

But what if the driver was drinking at a party, or in someone else’s home?

In some cases, a private person who carelessly provides alcohol to a driver who later injures someone can be held responsible for the harm.

This is important to know, because it might result in the injured person having an additional source of compensation if the driver’s auto insurance doesn’t fully cover the loss.

The most common situation is which a private person could be held responsible is if he or she gave alcohol to someone who was under the legal drinking age. Every state in the country makes it illegal to provide alcohol to minors, and most states also have laws that in some way make people financially responsible for the harm if they break this law.

For instance, if parents let young people drink in their home, the parents might be responsible if a minor gets drunk and later injures someone in a car crash. Some parents have the attitude that young people will drink anyway, and they would rather provide the alcohol themselves so the young people can drink in a controlled environment. But regardless of whether this is a wise attitude or not, it won’t necessarily prevent legal liability if the parents break the law and someone gets hurt.

There have been cases where parents have been held liable even though they didn’t serve the alcohol – and weren’t even at home – but they had alcohol on the premises and should have known that young people were likely to “party” with it while they were away.

Parents aren’t the only ones who can be sued. Other people who organize a party or act as a social host may be responsible for underage drinking. And in addition to drunk driving, parents and social hosts may be responsible for other types of harm that can result from being drunk, such as falls and other accidents.

Of course, if hosts make other types of intoxicants available to young people, that can also lead to liability. The growing prevalence of medical marijuana means that people who use it need to take care not to let minors have access to it.

And in some states, the law says that a social host may be responsible if an adult guest gets drunk and later injures someone. If the host controls the liquor supply and should realize that allowing the guest to continue drinking creates a danger to the community, the host may be legally responsible for the consequences of allowing the person to drink.

All these types of claims may be covered by the host’s homeowner’s insurance policy – so it may be possible for a victim to be fairly compensated without bringing a lawsuit that bankrupts the host.

If you or someone you know has been injured by a drunk driver or in another situation involving alcohol, it’s always good to talk to an attorney, because it’s not always clear who may be responsible until an attorney has investigated all the facts.

For instance, in one recent case a 20-year-old California girl threw a party at her parents’ vacation home while they were away. One of the guests got drunk, drove off, and struck another guest.

Under California law, businesses can be sued for selling alcohol to a drunk minor, but a minor can’t be sued for giving alcohol to another minor.

However, it turned out that the 20-year-old had asked a friend to stand by the gate and collect $3 to $5 from each guest to help pay for the booze. The California Supreme Court said that this turned the party into “a pop-up nightclub that required a cover charge for entry,” and thus the girl could be legally responsible as a careless seller of alcohol.

This case is significant because it’s very common for guests at informal college and high-school parties to be asked to pony up a few dollars each to help pay for drinks.

 

Landowner Responsible For Hazard On Someone Else’s Property

July 21, 2015

The Elephant Rock Beach Club is a private club in Massachusetts. It’s named after Elephant Rock, a natural formation about 250 feet offshore.

Many members swim out to the rock. One day a guest swam out to the rock, dove off it, and injured herself on a dangerous part of the rock that was submerged just under the water. She sued the club for not warning of the danger.

The club claimed that it couldn’t be held responsible for the accident because it didn’t own the rock. The rock was beyond its property line, in waters owned by the state.

But a federal court said that the club had effectively taken control of the rock, because it had established rules prohibiting small children from using it, and because lifeguards often whistled people away from it on days when there were difficult swimming conditions.

Although the rock wasn’t on the club’s property, the court said landowners sometimes have a legal duty to prevent people from being hurt on a neighboring property. For instance, it pointed to an earlier case where a city was sued for not putting up a fence between a city-owned playground and a railroad track.

Recreational-Use Immunity for Golf Injury

June 13, 2014

The purpose of recreational-use tort immunity statutes, which are common across the country, is to encourage private and public landowners to make their property available for public recreational use. To advance this public interest, these laws usually immunize the owners or occupants of real property from negligence liability toward people entering the land for recreation, often on the condition that the property is made available for use free of charge.

Typically the statutory immunity stops short of protecting defendants from liability for greater degrees of wrongdoing, such as acts or omissions that can be characterized as willful, malicious, or grossly negligent. Originally the perceived need for immunity arose because of the impracticability of keeping large tracts of mostly undeveloped land safe for public use, but the concept has evolved so that it need not necessarily involve vast expanses of wilderness.

The conditions for recreational-use immunity can vary somewhat with the wording of the states’ statutes, requiring case-by-case rulings depending on the facts before a court and the wording of each state’s law. In keeping with a commonly recognized rule of statutory construction, because recreational-use immunity statutes limit common-law liability that predates such laws, a court must strictly construe language in the statutes in order to avoid any overbroad statutory interpretation that would give unintended immunity and take away a right of action for injured persons.

When a golfer at a city-owned golf course slipped and fell on a walkway leading to a tee box, he claimed that the walkway was dangerously steep and narrow, causing his injuries. The city defended on the basis of a state recreational-use immunity law. Before an intermediate appellate court, the city prevailed on one issue, about the golf course’s coming within the statute, but the case was sent back to the trial court for resolution of a second issue, concerning the legal status of the injured golfer.

The golf course was sufficiently similar to “park” lands to be included in the definition of “premises” under the recreational-use immunity statute even though there is no express mention of golf courses by the legislature. The golf course fit within the common definition of a “park,” as it was a parcel of property kept for recreational use that was designed and maintained for the primary purpose of allowing users to engage in a recreational activity. Not only that, but the statute’s list of types of land uses constituting covered “premises” includes a catch-all reference to “any other similar lands.”

However, for the immunity to apply to the city, it was also necessary for the golfer to have been a “recreational user” under the law. This, in turn, meant that the golfer must have paid either no admission fee or no more than a “nominal fee,” to use the term from the statute. In this case, there was no question that a fee was paid to play golf, but since the lower court had not reached the question of whether that fee was “nominal,” it would have to decide that issue.

Generally a nominal fee is one charged only to offset the cost of providing the educational or recreational premises covered by the immunity statute. Some of the factors affecting this issue might include, for example, the amount of the fee, the extent to which it approximates the value of the service received in exchange for it, and the fees charged for similar recreational uses in the community.

In something of an ironic twist, if it were to be found that the golfer had paid no more than a “nominal fee,” then in exchange for that inexpensive round of golf, the golfer will have ultimately paid a higher “price” in the form of being precluded from recovering damages from the golf course owner for negligence.

Yet Another Hazard On the Golf Course

August 13, 2011

Hazards to a golfer’s health and safety that come most readily to mind involve swinging clubs and golf balls in flight, usually on unintended flight paths. But the sport also has other dangers lurking, including the garden variety slip and fall. When James, a golfer, sued a golf resort recently over such a mishap, his claim was dismissed, essentially because the particular risk at issue in his case should have been apparent to him and, as such, it was up to him to avoid it.

On an overcast and rainy day, James was playing golf with three friends at a private golf course. It began to drizzle early in the round, and by the 14th hole, the rain was coming down hard. Approaching the 15th hole, James and his friends discussed stopping play but decided to press on.

As James walked toward the green with one of his companions, they used stairs made of bricks and wooden railroad ties. James was familiar with the golf course, having played there on prior occasions. Although he had never before used the stairs leading to the 15th green, he had seen them.

After his friend walked down without incident, James followed and slipped on one of the first steps, breaking his ankle. At the time, it was raining and James was looking down, talking, and holding his putter in his right hand. Without incident, the other two in the foursome had taken an entirely different route on the grass, avoiding the steps.

James’s lawsuit did not fail for lack of effort, in that he enlisted an expert witness to buttress his theory that the resort’s negligence had caused his injury because the stairs had not been made slip resistant in wet conditions. The argument never got off the first tee, as it were, because the expert relied upon building code requirements pertaining to making “floor surfaces” slip resistant and the federal court hearing the case ignored the entire line of reasoning as “irrelevant.”

As the court saw it, it was obvious that such a building code requirement was never meant to apply to an outdoor golf course. For that matter, the stairs embedded in the ground at the 15th hole were not even part of a “building or structure” to which building codes apply.

Because of the court’s dim view of the expert evidence offered, James was left exposed to the resort’s contention, with which the court readily agreed, that James could not blame his unfortunate slip and fall on the resort or anyone else. In legal parlance, James had “assumed the risk” of walking on the wet stairs. The risk was obvious, inherent in the activity, and not so serious as to justify placing a greater precautionary burden on the resort operating the course. The court noted that this legal principle “facilitates free and vigorous participation in athletic activities.”