Premises Liability

Appellate Court Orders District Court to Allow Defendant’s Medical Expert to Examine Plaintiff in Personal Injury Case

Published on: June 2, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The Supreme Court of the State of Texas recently released an opinion and issued a rarely utilized type of order allowing an expert retained by the defense in a personal injury lawsuit to perform a medical examination on the plaintiff during an ongoing premises liability lawsuit. The defense’s request, which was previously denied by the trial court, was made to allow the defense to present the most credible responses to the plaintiff’s claims at trial. Since the high court’s order was issued in a proceeding that is ongoing, the plaintiff’s claim for damages may still prevail, although he will be unable to prevent the defendant’s proposed expert from performing a medical examination on him before the case proceeds to trial.

The Plaintiff Was Injured Outside a Grocery Store Operated by the Defendant

The plaintiff in the case of Rodriguez v. H.E.B. Grocery Company filed a personal injury lawsuit after he alleged that he was injured when he tripped on an unsecured plate in the parking lot of a property that was operated by the defendant. In response to the plaintiff’s lawsuit, the defendant retained a medical expert to ascertain the source of the plaintiff’s alleged injuries and offer a medical opinion as to whether the injuries were caused by the plaintiff’s fall on the defendant’s property. After reviewing the medical records of the plaintiff but without performing a physical examination on him, the defendant’s expert offered a report that concluded the plaintiff’s injuries were likely the result of a pre-existing condition, rather than the injuries sustained on the defendant’s property, as the plaintiff alleges.

The Plaintiff Also Retains an Expert Who Performs a Physical Examination

In addition to the medical expert retained by the defense, the plaintiff also hired a doctor to serve as an expert witness and offer an opinion on the source of the plaintiff’s injuries. The plaintiff’s expert performed a medical examination and would presumably testify that the plaintiff’s injuries were caused by the slip and fall on the defendant’s property. After the plaintiff’s expert was proposed to the court, the defendant requested that their expert be permitted to perform a physical examination on the plaintiff, arguing that a jury would give more weight to the plaintiff’s expert testimony merely because he was able to perform a full physical examination. The district court denied the defendant’s request, leading them to file an emergency appeal to the state supreme court.

State Supreme Court Dismisses Claim Against City for Failure to Meet Filing Deadline

Published on: May 5, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The Maine Supreme Court recently released a decision that emphasizes the importance of following procedural requirements in filing a personal injury lawsuit, especially in cases in which the defendant is a governmental entity. The case of Deschenes v. City of Sanford was filed by the plaintiff after he fell down an allegedly dangerous staircase at the Sanford city hall and was injured from the fall.The plaintiff filed a premises liability lawsuit against the city, although he did not give them a formal notice of claim until over 180 days after the injury occurred. Although the plaintiff had given the city oral notice of his injury, the city asked the court to rule in their favor and deny the plaintiff’s claim, based on the state requirement that plaintiffs must file a lawsuit against a government entity in Maine within 180 days of the alleged negligence.

Both Courts Agree that Oral Notice Is Not Sufficient to Comply with the Procedural Requirements

The plaintiff’s argument at the district court and on appeal was that he gave the city oral notice of his injury after it occurred, and he requested compensation for his injuries in person within 180 days of the accident. Both the district court and the Maine Supreme Court found that an official notice of claim needed to be provided in writing by the man or his attorney to comply with the state sovereign immunity act, and that the plaintiff’s oral request for compensation was not sufficient under the act. Based on the court’s decision to uphold the lower court’s decision, the plaintiff will not be compensated for his medical bills and injuries based on the alleged negligence of the city.

Judgment in Favor of County Fair Association Affirmed after Plaintiff Injured During Free Fireworks Display

Published on: April 21, 2016 | by Friedman Rodman Frank & Estrada, P.A.

The North Dakota Supreme Court recently released an opinion that affirmed a lower court’s granting of summary judgment to the defendant, a county fair association, in a case that was filed by a woman who was injured during a fireworks display that was put on at the county fair. The court found that the defendant was protected from liability by what is known as “recreational land use immunity,” which is contained in the North Dakota state code. Based on the appellate ruling, the plaintiff will be unable to collect compensation for the injuries that she suffered due to the alleged negligence of the county fair association.

Plaintiff Is Allegedly Injured by Improperly Maintained Grandstand Equipment

The plaintiff in the case of Woody v. Pembina County Annual Fair and Exhibition Association was a woman who attended the county fair to watch a fireworks exhibition. According to the facts expressed in the appellate opinion, the plaintiff stepped on a rotten board while looking for a seat in the grandstand and fell to the ground, suffering serious injuries.

After the case was filed, the defendant moved for judgment in their favor, arguing that as a non-profit entity that was offering the fair and fireworks exhibition free of charge, they were not liable for negligence under the recreational use immunity statute. The plaintiff disagreed, claiming that the defendant was operating the event for commercial purposes, and their non-profit status was not relevant to the determination of immunity.

Orlando Federal Court Remands Child’s Premises Liability Claim Back to Florida State Court

Published on: January 18, 2016 | by Friedman Rodman Frank & Estrada, P.A.

In A.Z. v. Bonnet Creek Resort Vacation Condominium Assoc., Inc., a minor was apparently injured when she tripped and fell while visiting a Florida condominium complex. The Georgia resident later filed a lawsuit against the property owner in Orange County, Florida Circuit Court. In response to the purportedly injured child’s complaint, the condo association removed the lawsuit to federal court.

Under 28 U.S.C. § 1441, a civil case may be removed to federal court when no federal questions exist if the parties to a lawsuit are citizens of different states, and the amount in controversy exceeds $75,000. At the time of removal, the condominium association also requested discovery concerning the minor plaintiff’s Georgia citizenship. Following removal to federal court, the Middle District of Florida in Orlando ordered the parties to address whether remand back to a Florida state court was appropriate sua sponte, or of the court’s own accord. Generally, a court may take such an action without a request from either party if a case should be transferred to another court due to a conflict of interest, or the court believes it likely does not have jurisdiction over the parties’ dispute.

Appeals Court Rules Summary Judgment Was Not Merited in Florida Negligence Case

Published on: October 20, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Peterson v. Flare Fittings, Inc., a man was apparently struck in the head by a 10-foot balloon that was tethered to a tree while he was attending a sporting event and trade show on a piece of property owned by a major theme park. According to the man, the balloon suddenly descended due to a gust of wind. As a result, the man reportedly became dazed and suffered pain.

After he was injured, the man reported the incident to a member of the event staff, who then brought the balloon down. A theme park manager allegedly told the man that the company would pay for any injuries he sustained due to being struck by the balloon. The manager also supposedly advised the man to seek medical treatment. Later that day, the injured man received x-rays and pain medication at a nearby hospital.

Federal Court Lacks Subject Matter Jurisdiction in Clearwater Slip and Fall Case

Published on: September 25, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Chase v. Hess Retail Operations LLC, a woman was apparently injured when she slipped and fell at a Clearwater gas station. As a result of her harm, the woman filed a negligence lawsuit against the owner of the gas station in a Florida state court. The gas station then removed the case to the Middle District of Florida based on diversity of citizenship because the woman denied that her damages did not exceed $75,000 in her response to certain requests for admissions.

Under federal law, the defendant in a lawsuit may remove a case to federal court for a number of reasons, including diversity jurisdiction. In order to establish diversity, the parties to a lawsuit must hail from different states, and the amount in controversy must be more than $75,000. Since a plaintiff normally selects his or her preferred venue when a lawsuit is filed, the defendant bears the burden of demonstrating that diversity jurisdiction exists. In general, a federal court must construe the facts of a case in which diversity jurisdiction is disputed in favor of remand back to state court.

Summary Judgment Upheld in South Florida Premises Liability Case

Published on: July 16, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In an unpublished opinion, the 11^th Circuit Court of Appeals affirmed an order granting summary judgment to a department store in a premises liability case. According to his complaint, a man supposedly injured his right eye when he walked into a clothing rack that was protruding into an aisle at a South Florida department store in late 2011. The man apparently struck the rack with enough force to fall backwards and hit his head. After his fall, store workers reportedly escorted the man to a customer service area, where a guest incident form was completed. In addition, one of the employees took photos of the clothing rack at issue.

After seeking medical treatment, the man filed a negligence action against the department store in a Florida state court. The case was then removed to federal court based on diversity of citizenship. In his complaint, the man accused the department store of breaching its duty of reasonable care by failing to warn him of the hazard created by the placement of the clothing rack. The man also asserted that the store knew or should have known about the dangerous condition prior to his accident. The man asked the court to award him damages for his resulting vision loss, light sensitivity, headaches, and seizures.

Florida Court Finds Injured Woman’s Request to Amend Her Premises Liability Complaint Must be Reconsidered

Published on: June 25, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Grover v. Karl, a woman was apparently hurt when she fell after a fight broke out at a Florida bar. Following her injury, the woman sued the alleged property owner for negligence. Although the woman initially accused another patron of intentionally attacking her, she later stated her fall occurred when the bar manager was shoved into her during a fight between two other individuals. In response to the woman’s premises liability action, the bar owner filed a motion for summary judgment. Such a motion may be granted when there are no material facts in dispute, and one party to a lawsuit is entitled to judgment as a matter of law.

According to the property owner, he had no notice of the allegedly dangerous condition that injured the woman. The bar owner also argued that the woman’s deposition testimony was inconsistent with her negligence complaint. Prior to a hearing on the summary judgment motion, the woman filed a motion for leave to amend her premises liability complaint. In her proposed complaint, the woman accused the bar manager of intentionally committing battery against her. She also submitted an affidavit in support of her motion, explaining the contradictory testimony.

Court Overturns Summary Judgment in Florida Premises Liability Case

Published on: June 1, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Cook v. Bay Area Renaissance Festival of Largo, Inc., a visitor to a festival apparently parked in an overflow lot after being directed to do so by an event volunteer. While leaving the festival, the woman reportedly tripped on an exposed pipe while walking on a patch of unpaved sidewalk that connected the overflow lot to the festival. At the time, the walkway was owned by the city. As a result of her fall, the woman injured her foot. After her fall, the woman reported the incident to a festival employee, who immediately removed the pipe without seeking prior authorization from the landowner.

Later, the injured woman filed a negligent maintenance lawsuit against the festival operator in a Florida court. During discovery, the woman admitted the pipe was readily visible to pedestrians and that her fellow festival attendees warned her about the pipe immediately prior to her fall. In addition, the woman and her spouse offered conflicting testimony regarding whether they were told by festival workers to use the unpaved walkway.

Appeals Court Overturns Comparative Negligence Ruling in Florida Premises Liability Case Where Plaintiff Was Wearing High Heels

Published on: May 1, 2015 | by Friedman Rodman Frank & Estrada, P.A.

In Bongiorno v. Americorp, Inc., a Florida woman filed a premises liability claim against a property owner over the injuries she allegedly sustained when she fell on a slippery bathroom floor in the office building where she was employed. In response to the lawsuit, the property owner denied liability for the woman’s harm and asserted the defense of comparative negligence. Following a bench trial, a judge ruled in favor of the woman but found both parties equally negligent for her injuries. According to the judge, the woman was 50 percent responsible for her slip-and-fall harm because she wore four-inch high heels to work. As a result, the hurt woman’s damages award was significantly reduced.

On appeal to the District Court of Appeal of Florida, Fifth District, the woman argued the lower court judge committed error when he found her negligent for wearing high heels to work because there was no evidence offered to support such a conclusion. The building owner countered that women often fall as a result of wearing four-inch high heels, and the plaintiff assumed the risk when she chose to do so. In addition, the property owner claimed the fact that the woman told her doctor she was wearing such shoes at the time of her injury indicated an individual who was wearing so-called “safer footwear” could avoid falling on the supposedly slippery floor.