Articles Posted in Slip and Fall Injuries

A property owner in West Virginia is required by negligence law to keep the premises in reasonably safe condition and to warn visitors of any hazards that the owner knows about or should be aware of through reasonable inspection. That obligation doesn’t apply to “open and obvious” dangers, however. The U.S. District Court for the Southern District of West Virginia recently explained that visitors assume the risk of these types of hazards.

mail-1549151Mr. Scaggs was injured in an accident in which he tripped over a flower pot while visiting a post office in Peach Creek. He’d gone to the post office to pick up some packages and was carrying them with both hands at the time. Scaggs said he couldn’t see the flower pot, which was placed just outside the front door and used to discard cigarette butts, because of the size of the package he was carrying. He knew the pot was there somewhere and lifted his leg in an attempt to avoid it. Scaggs lost balance after stepping in the pot with his left foot. He fell to the ground and struck his head, arm, wrist, and knee. He later sued the government for negligence under the Federal Tort Claims Act.

In response, the U.S. argued that the flower pot posed an “open and obvious hazard.” As a result, the government asserted that it wasn’t responsible for any injuries caused by the pot’s placement outside the front door. The District Court agreed. “Under West Virginia negligence law, a plaintiff must show that (1) defendant owed plaintiff a duty of care, (2) defendant breached that duty, and (3) the breach proximately caused plaintiff’s injury,” the Court explained. A property owner owes no duty, however, to warn visitors about dangers that are open and obvious or to eliminate those dangers from the property. Instead, the invitee assumes the risk related to those dangers. “There is no liability for injuries from dangers that are obvious, reasonably apparent, or as well known to the person injured as they are to the owner or occupant,” the Court said.

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A person or entity that owns property in West Virginia is typically required to maintain the premises in a reasonably safe manner and to warn others about any hazards. The “duty of care” that a property owner owes to visitors varies, however, depending on why the person is there in the first place. As the state’s Supreme Court recently explained, “invitees” must be warned of and adequately protected from any hazards of which the property owner is or should be aware. For “trespassers,” on the other hand, an owner simply must refrain from “willful or wanton” conduct that causes the person injury.

do-not-enter-1444577-m.jpgMr. Ragonese was injured in an accident while visiting the Mardi Gras Casino & Resort outside Charleston. After gambling for a few hours with his wife, Ragonese went to the casino’s hotel to see if he could get a room on the house. Although he used a walkway to get to the hotel from the casino, Ragonese tried a shortcut on the way back. He stepped through a line of shrubbery and proceeded down a grassy area before abruptly reaching a retaining wall. Ragonese said he had noticed the wall on his way to the hotel, but he forgot about it on the way back. He slid down the wall and fell to the ground below, fracturing his leg in the process. Ragonese later sued the casino for his injuries.

Granting summary judgment to the casino, a trial court said Ragonese started as a business invitee when he entered the property but became a trespasser when he decided to take the shortcut. Finding that the casino didn’t act willfully or wantonly to cause Ragonese’s injury, the court said Ragonese couldn’t seek damages for his injuries.
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pipes--1-1188942-m.jpgSometimes, one of the most important things a plaintiff can do for his or her case is just show up in court. If the plaintiff or the plaintiff’s attorney does not appear in court for a trial or scheduled hearings, a judge might have no choice but to dismiss the case.

Such was the case with Mr. Shipp, who filed a lawsuit over a slip-and-fall accident he suffered in 2010. Shipp was walking down the street in Charleston when he tripped on a gas line hole and suffered an injury. In Shipp’s case, filed with Kanawha County Circuit Court, he argued that the Mountaineer Gas Company “negligently, carelessly, and recklessly” failed to cover the hole, or maintain it in a way that protected the general public. The company also failed to properly warn the public of the danger. As a result of tripping over the uncovered hole, Shipp suffered from painful and permanent body injuries; physical pain and mental anguish; severe and substantial emotional distress; loss of capacity for enjoyment of life; and medical expenses. Shipp sought compensatory and punitive damages.

However, from there, things began to unravel. In August 2011, Shipp’s attorney filed a motion to withdraw from representation with the court, claiming that he had a total breakdown in communication with Shipp and that he doubted both Shipp’s credibility and the facts of the complaint. The motion was granted in February 2012. The court’s order specified that Shipp was to inform the court within 45 days whether he had received substitute counsel. In April 2012, Mountaineer Gas Company filed a motion to dismiss due to Shipp’s failure to comply with the court order. A hearing on the motion was set for August 20, 2012. On that date, while Mountaineer Gas Company appeared, Shipp did not. Because Shipp never appeared, or responded in any way, the court finally dismissed the case.
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1361656_modern_apartments.jpgA West Virginia woman who tripped and injured herself while visiting her daughter in Huntington has sued the company that owns the property, claiming that it failed to properly maintain the premise.

A mother visited her daughter’s apartment last May 2011. After returning from an errand, she tripped and fell on what she alleges was uneven, raised payment. The mother claims that in addition to this hazard, the surrounding area was poorly lit, making her unable to identify the problem until it was too late. The mother claims to have suffered serious bodily injury and emotional distress, and is suing for medical expenses, pain and suffering, and various economic and noneconomic damages. After the incident occurred, a representative of the property was informed and corrected the problem by painting the area with brightly colored paint, as well as installing additional lighting.

The mother claims that by so quickly altering the area, the property owner removed evidence that there was a hazard in the first place, hindering the mother’s ability to provide such evidence in a lawsuit. She further argues that the property owner was perfectly aware of the mother’s potential to sue at the time the hazard problem was remedied.

There are two areas of law at issue here, which are related to an extent: basic premise liability and landlord-tenant responsibilities. Under basic property law landlord-tenant responsibilities, a landlord has a duty to his or her tenants to maintain common and outdoor areas, which means keeping them clean of trash and ensuring that all lights are functioning. It is not clear whether the area where the accident occurred allegedly lacked working lights, or whether it simply did not have any lighting. Regardless, the landlord owed a duty to the mother’s daughter, a tenant, to maintain these outdoor areas.

Then there is the basic premise liability duty of a property owner to a licensee. The mother’s suit refers to her as an “invitee,” but unless she was doing business on the property or the property had been opened to the general public, that was likely incorrect. A licensee is any invited guest on the property who is not there to do business. The property owner’s duty to a licensee is still a strict one, if not as strict as his or her duty to an invitee. He or she is required to warn about or make safe known hazards on the property, whereas with an invitee, the property owner must not only warn about or correct known hazards, but also do a reasonable inspection to find any previously unknown hazards.
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62740_industrial_extension_cord.jpgIn a previous post, we discussed the fact that West Virginia is a “notice pleading” state. Notice pleading is the most common form of pleading in the United States. When the injured party hires a West Virginia personal injury attorney and files a claim, notice pleading requires that the initial complaint have just a “short and plain statement of the claim showing that the pleader is entitled to relief.” A complaint meeting these requirements is likely to survive any attempts to dismiss the claim. However, once the claim is allowed to proceed, the next test it faces is surviving a summary judgment motion.

A motion for summary judgment is typically filed after both parties have gone through a “discovery” period, whereby each party requests information about the case from the other. When a summary judgment motion is filed, the burden is on the party that files the motion — usually the same party who wanted the case dismissed — to show that no trial is necessary because (1) there are no disputes of material fact and (2) based on the accepted facts, the party that filed the motion deserves to have the judge rule in his or her favor. Since the burden is on the party that files the motion, or the “moving party,” the other party only needs to show that there is substantial evidence of a factual dispute, regardless of how solid the evidence turns out to be.

In a recent case, the West Virginia Supreme Court affirmed a circuit court’s summary judgment ruling in favor of Grafton Truss and Panel Company after an employee could not provide sufficient evidence that the company caused his injury.

Charles Lucien Hall had claimed that the company was liable for injuries he sustained after a “tripping device” had been put in his path at the company’s plant, an extension cord stretched across the aisle. Hall claimed that the cord had been placed there on purpose, resulting in his injury. Hall did not tell anyone about the incident; instead, he just told an unspecified person that he would not be coming to work because his tripping incident caused an injury. Without more evidence that the company intentionally laid out a tripping hazard, the circuit court entered summary judgment against Hall in 2008. Hall then appealed to the state Supreme Court.

However, the Supreme Court found that Hall had a history of failing to report supposed actions taken against him, such as five cases where coworkers allegedly threw drywall at him. Hall could not recall who had thrown the drywall or where the incidents occurred. He was able to identify one culprit, who in 2003 allegedly threw drywall at him, thrust him against a wall, locked him in a closet, and set Hall’s nail pouch on fire while he was wearing it. After Hall reported the nail incident, Hall and the other man got into an off-site altercation, which resulted in the other man’s arrest and his termination from the company.
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pallet.jpegOne common cause of injury is an accident on someone else’s property. When the injury is a result of the property owner’s failure to take reasonable care of the property, the injured party can sue the property owner for premise liability. The most typical types of premise liability cases involve slipping and falling, dog bites and other animal attacks, insufficient security, and workplace or construction injuries. How liable a property owner is for an injury depends upon the nature of the injured party’s visit to the property. If the injured party were simply a guest invited over for the evening, he or she would be considered a licensee. In the case of a licensee, the property owner has a duty to warn about conditions on the property that the owner knows are harmful. If the injured party were there for a business purpose, or because the property was opened to the public, he or she would be considered an invitee. For an invitee, the property owner has the strictest responsibility: he or she must warn of hazards that the property owner either knew about or should have known about. Not only are property owners bound by these duties, but so are property possessors.

A recent case involving a Hurricane, West Virginia woman and Walmart is one of an invitee being injured on the premises. Back in July 2011, Roberta Marazo was shopping at a local Walmart when she tripped over a protruding pallet and fell to the floor. Marazo claims that as a result, she suffered serious injuries to her face, back, and neck. She has gone ahead and sued Walmart for negligence, claiming that the company failed to properly warn her about the fall hazard presented by the protruding pallet. For instance, there were no signs warning of the potential risk. Marazo seeks both compensatory damages (money to compensate for specific losses) and punitive damages. Her case will soon go before a circuit court judge.

If Marazo can successfully make the case that Walmart did not properly warn of the pallet, then Walmart would be liable for her injury, because as the possessor of the property, Walmart had a duty to warn of hazards that were both known and should have known. However, Walmart might try to argue that no one would reasonably believe that a pallet could be a tripping hazard, and that of all of the people who had visited Walmart stores, Marazo was the very first to have a problem. Even if Walmart makes this argument, it might be difficult for the company to succeed. Nonetheless, even if Marazo is successful in her suit, she might have trouble collecting punitive damages. In West Virginia, for a plaintiff to receive punitive damages, he or she must prove that the defendant acted maliciously, intentionally, and wantonly, and displayed criminal indifference to the defendant’s obligations. Whatever Walmart’s failures, it is unlikely that the employees who set up the pallet acted maliciously or intentionally, or with criminal indifference.

666037_x-ray_head.jpgThe NFL season is half over and college football season is hitting its stretch run, but while the Mountaineers’ and the Thundering Herd’s regular seasons are ending soon, the investigation regarding head injuries sustained playing America’s game will continue. Our collective consciousness has been raised considerably over the past year due to the severity of injuries sustained by players and the news stories that have come out regarding the long-term effects of repeated concussions. The concern has extended to the youth levels of the sport, where West Virginia University Medical School’s own chairman of neurosurgery Dr. Julian Bailes has become the chairman of Pop Warner’s national medical board. The board is tasked with ensuring that the league’s rules are preserving the safety of the children who play Pop Warner football.

While football gets most of the press in the discussion about the dangers of concussions and brain trauma, there are many people who sustain brain injuries off the gridiron. Car accidents, slip and falls, and workplace mishaps can, and in many instances do result in serious brain injuries. Brain trauma can have a significant negative impact on a victim’s life after they have suffered the injury. Chronic headaches, memory loss and changes in the victim’s personality are just some of these adverse effects.

Whether you or someone you know has sustained a traumatic brain injury through no fault of your own, you should consult a West Virginia brain injury attorney as soon as possible. While not every brain injury gives rise to legal liability, a trained lawyer can evaluate the circumstances leading to your trauma and explain your rights and options. If the facts of your injury constitute a strong legal case, an attorney serves as an invaluable resource and advocate who can help get you compensated for the damages you have already suffered and will continue to suffer.

1062252_happy_elderly_couple.jpgAccording to the Mayo Clinic’s website, the risk of falling after the age of 65 is about one in three. While most falls aren’t serious in nature, they are still the leading cause of injury and injury-related death among older adults, says the site. In addition, the CDC (Centers for Disease Control) reports that nearly 2 million elderly Americans are treated for falls annually in emergency rooms in the U.S.

Ways to Reduce Risk of Injury from Slip and Fall Accidents

Given the severity of the injuries that elderly West Virginians can incur as the result of slip and falls, it is important to minimize risk whenever possible. One good way to do this is to keep living areas clear of clutter, bulky furniture and loose rugs that can slide. Another way is to install handrails in tubs, on stairways and in other high-traffic areas. Finally, elderly citizens should always make sure that steps and sidewalks are repaired to eliminate cracks or other uneven surfaces that could lead to falls.

rehab.jpgA “slip and fall” is a personal injury that usually occurs because of the negligence of another person or business. In 2004, more than 8 million people were injured, according to the National Center for Injury Prevention and Control. Some slip and fall accidents are minor, only resulting in cuts, scrapes or occasional broken bones. For example, if a business fails to put salt or sand down on the front steps on an icy day in January and you sustain a broken arm after falling, the business may be held liable for your injuries.

However, some slip and fall injuries can be gravely serious, such as falls from dramatic heights or falls that involve secondary injuries when victims are impaled on objects. In more serious cases, victims may have recurring health problems as a result of their injuries. Over time, these nagging (and often debilitating) injuries can impair quality of life. Constantly having to return for doctor exams, procedures/surgeries and treatments can not only take valuable time away from your home and work commitments, but it can also take a toll on your emotional wellbeing.

Particularly for people who have sustained long-term injuries like spinal cord or brain injuries, life is often never the same. Research suggests that losing the ability to be independent in early to middle life can even cause early onset of Alzheimer’s and dementia as well as shorten the expectancy of life, according to a recent Mayo Clinic study.