TOV Injury and Safety Blog

Court confirms that true black ice is not "open and obvious"

It would seem to be beyond dispute that something which is by definition "either invisible or nearly invisible, transparent or nearly transparent" is NOT "open and obvious."  Nevertheless, insurance companies, emboldened with their success in defeating Michigan personal injury claims, have pushed most every defense theory to its ultimate absurdity.  This happened again in Garrison v. St. Paul Fabric Services, when the Defendant appealed a trial judge's decision that a fall on black ice in a handicapped parking space was not the result of an "open and obvious" defect.

Court interprets Equine Activity Liability Act to protect owner from negligence

Trina Beattie was injured when a horse being saddled by its owner startled and lifted her off the ground as she grasped its halter.  She missed several months of work and has continuing long-term physical ramificiations from the injuries she suffered.  Beattie and two companions alleged she'd been invited to defendant's home to ride a partially-broke horse, while defendant argued Beattie had invited herself.  Before reaching the factual discrepancies, however, the Court of Appeals upheld the dismissal of Beattie's case, based on its interpretation of the Equine Activity LIability Act.

Fall from ladder evokes "common work area" doctrine; employee of sub-contractor can sue

David Slater was injured in a fall from a 32 foot ladder, as he attempted to unchain it.  The General Contractor had suggested that he unchain the ladder, left by another subcontractor, despite Slater's lack of experience on roofs, ladders or heights and his lack of fall protection.  His claim was initally dismissed by the trial court, but reinstatted by the Court of Appeals.  The higher court ruled that these circumstances brought into play the "common work area" doctrine, under which the owner or general contractor must assume a legal duty to maintain safety in certain construction areas.

No liability for fall on worn, wet carpet

Phillip Sapienza sued Stu Evans Lincoln Mercury Lakeside in Macomb County after he fell while getting out of his car.  Sapienza argued that the dealership negligently caused his fall, which occurred when he stepped on worn and wet carpet while exiting his car after parking in Defendant's facility.  The Court ruled that Sapienza had not met his duty of proving that the Defendant had notice of the wet area where he fell, since it was a "high-traffic area" and the liquid could have been present "for five hours or five minutes."

Court dismisses woman's toxic mold exposure claim after Supreme Court eliminates "discovery" rule

Connie Colaianni alleged that she suffered numerous sinus and respiratory problems after her workplace moved into a newly-renovated location in 1998.  She did not sue until July of 2003, however, and the landlord argued that her case should be dismissed because it was not in compliance with the three-year statute of limitations. The trial court held that Colaianni did not reasonably discover the basis for her claim until her doctor diagnosed her illness as stemming from toxic mold exposure, and therefore concluded her suit was timely, as it was filed within three years of reasonable discovery. 

The Defendants renewed their motion to dismiss, however, after the Engler Majority of the Supreme Court wrote its opinion in Trentadue v. Gorton in 2007.  The Court of Appeals panel in Colaianni noted that when the Supreme Court completely repudiated the common law discovery rule in 2007, it undercut the basis for Colaianni's lawsuit.  Therefore, the case had to be dismissed on the basis of the three year statute of limitations, even if Colaianni's doctors did not identify the cause of her problems during the statutory limitation period.

Landlord not responsible for fall from "settled" step lacking a handrail

The Court of Appeals upheld the trial court's dismissal of Don Wright's negligence claim against Meadowood Jackson, L.L.C., his landlord.  Wright fell while backing out of his apartment with two bags of garbage and suffered a very severe injury to his hip which was already afflicted with avascular necrosis.  He alleged the fall resulted from excessive settling of the step over a series of years, that the step did not comply with the applicable building code, that it needed a handrail, and that caulking on the steps proved that the landlord had actual notice of the defective settling of the step.

Court dismisses another injury claim arising out of a fall

In Tyro v. Builders Association of Southeastern Michigan, the Court of Appeals upheld the dismissal of Ms. Tyro's injury claim.  Tyro was seriously hurt when she tripped over electical cables lying on the floor between booths at a home improvement show.  There were factual disputes over whether the cables were under a cover with yellow sides, but in any event Tyro admitted she wasn't looking at the floor and did not see the cables or the cover. 

Sixth Circuit limits, rejects "contract immunity" defense

Joy Davis sued Venture One Construction after an unhinged door fell on her while she was retrieving a dustpan on her employer's premises.  The door had been temporarily stored outside the construction area by a subcontractor performing remodeling on a Subway restaurant, and Venture One was the general contractor having a duty to maintain safety at the site.  Venture had persuaded the trial court to dismiss Davis' claim by arguing that it owed no duty to Davis, relying upon the Michigan Supreme Court's activist interpretation of "contractual immunity."  The Sixth Circuit overturned the lower court's decision, rejected Venture's claim that it owed plaintiff no duty, and returned the case to the District Court for trial.

Court stretches to enforce pre-injury release executed by volunteer

Teresa Theodore volunteered to work at a racetrack in Oakland County.  On her first day, she was required by the racetrack to execute a release which "waives, discharges and covenants not to sue" for any injuries suffered "arising out of or related to the event(s)" held at the racetrack. An undetermined time later, she was struck by Raymond Horenstein's trailer as he was leaving the paddock area.  She sued Horenstein for her injuries, but his insurer persuaded the trial court that her claim against Horenstein was waived by the release she signed when she agreed to volunteer.  The Court of Appeals agreed.

Low overhead on stairs is "open and obvious"

Kevin Romitti was attending a deposition at the offices of Peter Ryan and had to descend a stairway with a low overhead.  Romitti made his way to the conference room safely twice, before striking his head on the third time down.  Perhaps he was disoriented by too many mind-numbing questions from one attorney or another.  In any event, apparently he was seriously hurt and he filed a claim against the owner of the building.

No remedy for fall on icy business sidewalk

Cynthia Brown sued the Alterra Healthcare Corporation after she fell and injured her shoulder on the sidewalk approaching Alterra's building.  Her claim was dismissed before she was allowed to depose employees of the Defendant, and she appealed.  She argued that the dismissal was premature because she should have been allowed to explore what the corporation knew about the icing problem, what had been done about it and how long it had been present.  The Court of Appeals rejected her claims.

General contractor not responsible for wall collapse that caused serious injury

Brian Crumley, a carpenter, suffered very serious injuries on the job when a wall being erected collapsed in a stiff wind.  He sued Multi Building Company, Inc., a lumber supplier, alleging that Multi, the general contractor on site, had been negligent in protecting workers by failing to assure that the wall was "toed in" immediately.  Under Michigan law, a general contractor owes all workers on a site the duty to protect them from known dangers that pose a hazard to multiple employees in a "common work area."

Restaurant not liable for criminal attack on patron

Mauricio Veal was attacked and robbed in the Defendant, V. Veseli,Inc.'s restaurant.  He filed suit claiming that the restaurant's employees were negligent in allowing the several men responsible for the attack to loiter on its premises and in failing to promptly seek police support.  The Court of Appeals pointed to uncontradicted testimony documenting that no one had anticipated the attack and that Mr. Veal left the establishment immediately after the attack to follow his assailants. 

Premises' liability aspect of tree-cutting claim is dismissed; negligence survives

Kamal Fayad agreed to help the Darwichs cut down a tree in their yard.  While Ismail Darwich cut the tree with a chainsaw, Mr. Fayad and Souha Darwich prepared to guide it down with ropes.  Unfortunately, when Ismail finished his cut, Souha dropped her rope and ran, and the tree fell on Fayad.  He filed a negligence action.  The trial court dismissed Fayad's complaint, holding that it sounded only in "premises liability" and that felling the tree was an "open and obvious" danger as to which the Darwichs owed no legal duty.    

The Court of Appeals overturned the summary judgment granted by the trial court, pointing out that in this case, Souha Darwich's alleged duty arose in part from her negligent participation in the tree-felling activity.  Her alleged negligence was not related to her ownership or control of the land where the injury occurred.  Therefore, an ordinary negligence claim had been pleaded and a duty of reasonable care existed; there were sufficient factual allegations to create a material question of negligence which a jury would need to decide.

Tenant who repaired defective handrail cannot sue landlord who installed it

Deborah Marino fell down the stairs in her rented home when a stairway handrail detached from the wall.  She and her husband claimed the handrail had been anchored only in the drywall and not in a wall stud.  Unfortunately, they repaired the handrail and drywall before filing suit for the injuries she suffered.  The appellate court upheld the trial court's decision to exclude any evidence of the manner in which the handrail had been mounted, since the landlord was not allowed the opportunity to inspect the failure before it was repaired. 

No recovery for fall down defective stairway: "open and obvious hazard"

The Plaintiff in this case filed suit after falling down the defendant's stairway.  The plaintiff was a business visitor, or "invitee" when he fell.  He documented that the stairs did not comply with the building code, with an unusually narrow second step and a difficult-to-grab wide handrail.  He claimed that as he was grasping the handrail he did not notice the narrow step and fell.  Architects confirm that irregular stairs are a very common cause of falls, however, the Court concluded that the defects established by the plaintiff were not sufficient to create a duty on the part of the landowner to eliminate the danger.  The case is Bermudes v. Reynoso.

More litigation regarding poison gas in the Holiday Inn pool

Last month the Court of Appeals held that the Holiday Inn Express in Ludington had insurance coverage for a substantial injury verdict rendered against it.  This month, the court set aside the verdict in Bronkema v. Ferwerda Enterprises, Inc.  The case arose when a maintenance man, hurrying with repairs so that he could return to jail after work release, did not successfully accomplish his repairs and allowed poison gas to injure the Bronkema family.  The trial judge had directed a verdict in favor of the family on the issue of Holiday Inn negligence, but the judge threw out the case against the pool component manufacturer, whom the Holiday claimed failed to adequately inform it about proper safety measures. 

Henry Saad, insurer's judge, strikes again

When Governor Engler appointed Henry Saad to the Court of Appeals he knew what he was getting.  And Judge Saad has delivered.  He is an assured vote for the insurance company no matter the circumstances or the legal question. He confirmed that position again recently, voting to dismiss the claim of a Save-a-Lot patron who allegedly fell on black ice in the parking lot.  Shirley Powell claimed she never saw, and couldn't see the ice until after she was on the ground, so it couldn't be "open and obvious." The Court disagreed.

Doctor's opinion that chemical exposure caused loss of smell is admissible

When a Lowe's employee opened the packaging on some pool chemicals, one bottle was punctured, but still placed on a retail shelf.  David Best suffered a chemical burn on his face and hands when he pulled the bottle off the shelf to examine it.  Soon after, he lost his sense of smell completely.  His doctor confirmed that he suffered from "permanent anosmia" and by means of differential diagnosis the doctor excluded other possible causes of the loss.  Lowes persuaded the trial judge to dismiss Best's case, however, by persuading the judge that the doctor's expert opinion was unduly "speculative".

"Common work area" claim dismissed

Brent Curry, a licensed electrician, was injured when he stepped into a gap between the on-site construction temporary trailer and the metal stairs providing access to it.  The stairs had never been affixed to the trailer, but no one knew when it separated sufficiently from the trailer to create a gap wide enough to constitute a hazard to workers.  On that basis, the courts dismissed Curry's injury claim against the contractor.

Landowner not negligent in turning off light, leaving guest in darkness

Patrick Fitzpatrick was injured when Teresa Betanzos turned off the porch light, leaving him to negotiate a stairway in the dark.  He filed a negligence claim, arguing that his injury resulted from an uneven stair he did not anticipate in the dark.  The Court rejected his negligence claim against Teresa, and ruled that he had failed to avoid the "open and obvious" defense to a premises liability claim.

Fall in snow-covered icy rut is dismissed as "open and obvious"

In another Court of Appeals "slip and fall" case, the injury victim was denied the right to a jury trial regarding the reasonableness of the defendant's maintenance of his home.  The victim fell when he lost footing in an icy rut in the Defendant's driveway.  The Court dismissed his negligence claim, holding that the landowner owed "no general duty...to take reasonable measures to remove snow and ice for the benefit of invitees..." and that there were no "special aspects" that rendered the hazardous condition especially unsafe or that increased the likelihood of harm.  The Court also held that a city ordinance requiring landowners to clear sidewalks did not apply to the insured defendant's driveway.

Post-Taylor court rejects third-party "fault" without duty

Part of the history of tort "reform" legislation was a movement to eliminate joint and several [or "deep-pocket"] liability.  The Michigan Legislature adopted a statute that achieved that end by allowing victims to recover from a particular defendant only those damages attributable to that defendant's fault.   (In this way, the innocent victim bears the weight of the "third-party's" uninsured or uncollectible share of fault.  The reform legislation also allowed the defendant in a lawsuit to blame others who are "at fault" in causing the victim's injuries, without actually suing them.  Insurers had argued that they should be able to place blame on third parties, and avoid responsibility for their "share" of responsibility, even if the third party wasn't included in the lawsuit.  They went an additional step, next, and argued that they should be able to deduct damages for the "fault" of a third-party who owed no duty to the victim.

Injured grandmother cannot sue school for negligent design of gym

A grandmother who fell from gymnasium risers attempted to sue the school for negligent design of the gym where she watched her daughter perform.  While governmental units normally enjoy "immunity" from their errors or negligence, by statute they remain liable for negligent operation of motor vehicles and for defects in public buildings. 

Maybe black ice isn't obvious. Duh.

In its continuing struggle to make sense of an "open and obvious" duty defense expanded beyond logic or common sense by the Engler Majority to relieve insurers of responsibility for falls, the Court of Appeals has once again addressed the black ice issue. In Wilson v. LakePointe Gas and Oil, three judges of the Court of Appeals followed the lead of the Slaughter v. Blarney Oil Castle Co., decision, and overturned a summary dismissal.  Wilson fell on black ice at a service station, but the trial court threw out his claim, applying the "open and obvious" defense.  The court noted with approval the Slaughter holding, stressing that by any definition of black ice, it is either "invisible, nearly invisible, transparent of nearly transparent" and therefore by definition it cannot be "open and obvious".  It is good to see some level of consistency and intellectual honesty in the examination of premises liability; unfortunately, the entire area of law needs to be re-examined with common sense.

School janitor "owes no duty" to injured school board member

Ruth Williams, a member of the Inkster School Board, was in the cafeteria for an enrollment fair.  A contractor's employee had just mopped the cafeteria floor but didn't set out any warnings. Williams fell and severly fractured her ankle.  She sued the contractor, alleging negligence in failing to post a warning to meeting invitees that the floor was newly mopped and slippery.  The Court held that the contractor and its employees--whether negligent or not--owed no duty to her or any other person entering the cafeteria.

Victims can go to jury with circumstantial evidence of poisoning

In Gass and DeJonge v. Marriott Hotel Services,Ind. and EcoLab, Inc, the plaintiffs claimed that they were poisoned by pesticides used in their hotel room after they discovered a dead cockroach.  They described a toxic and noxious odor and vapors and claimed continuing serious symptoms following the exposure. 

The Defendants identified two toxic chemicals commonly used for insect control and one harmless chemical, but claimed that only the latter pesticide was used on the Plaintiff's room on the date in question.  The case was dismissed by the trial court for lack of evidence, however, the Sixth Circuit reinstated it.  The appellate panel agreed that the plaintiff's physicians were competent to testify about the cause of the Plaintiff's symptoms, even though they had no hands-on experience with toxic chemicals.  The court also held that the circumstantial evidence presented by the Plaintiffs created a genuine issue of material fact with regard to which chemicals had been used by Defendants on the date in question.  It concluded that alleged negligent spraying of pesticides did not automatically require a foundation of professional or scientific testimony.

When in doubt, let the dog bite

David Skuba was visiting David Gomez's house when he heard what sounded like a large dog on a chain approaching him from the carport.  He stepped backwards and fell over a large rock in the yard.  He then brought an action against Gomez and his insurer, attempting to hold them responsible for his injuries.  The Court held that the dog and the rock were "open and obvious dangers" and therefore the landowner owed no duty to Skuba.  While we understand that the Court might not want to compensate a klutz, we find the idea that a large dog on a chain in a carport is automatically an "open and obvious danger" to be a legal fiction. 

Employee's injury case sent back for a new trial

The Court of Appeals reversed the Wayne County Circuit Court judge's decision that summarily disposed of an injured worker's claim against a company that leased manufacturing equipment to his employer.  The worker was badly hurt when a slitter allegedly malfunctioned.  His attorneys claimed that his injury was caused by the breach of a contract obligating the defendant to train employees in the use of the machine and to inspect it for defects and dangerous conditions.  The Court of Appeals unanimously agreed.

Bush exit rules make it harder to sue negligent nursing homes

Last fall, on its way out the door, the Bush administration quietly enacted a new rule that effectively prohibits state inspectors and Medicare and Medicaid contractors from providing evidence in private cases.  The rules keeping evidence out of court affect about 16,000 nursing homes and more than 3 million residents.  After we have paid to regulate and inspect these homes for the safety of residents, we are not allowed access to the information gained, in order to hold violators responsible for bad practices.  The rules are denying access to key information both on how injuries and improper evictions have occurred, and also with regard to the state of the industry's health and safety practices generally.

Hotel design need not meet safe standards

When Cathy Shattuck fell while exiting the bath tub at the Hotel Baronette, she wasn't certain if she lost her balance on the "extra-deep" tub or the slippery tile step outside of it.  The Court held that it didn't matter:  either condition was an "open and obvious" danger, so the hotel owed her no duty to make it safe.  It is an ugly acknowledgement of the current state of our law, and confirmation of our courts' reflexive rejection of personal injury claims, that a court could decide that "we find that all three surfaces posed open and obvious dangers" to Shattuck, and that as a result, the owner owed her no duty!

More immunity for contractors

A doctor and his wife moved into a new home and retained a painter to re-paint the interior.  The painter he hired did an incompetent job, leaving paint spots on the wooden floor and severe scratches on the window panes where paint was removed.  He sued the contractor for negligence, but the Court tossed his claim.

The judicial activists of the Engler-era created tort immunity for contractors by holding that a contractor cannot be sued for negligently performing a contractual duty.  Under the Fultz v. Union-Commerce Assoc. decision, the "Engler majority" held that assuming a contractual duty to act relieved the contractor of his otherwise-existing duty of reasonable care, rendering the contractor immune from negligence claims by the other parties to the contract or third-parties.  In this case, Mehta v. Limbright, the result was a lack of insurance coverage to pay for the contractor's admitted "incompetence or sloppiness".  In many other cases, the doctrine has meant that a severely disabled injury victim has been denied recourse against the insurer of the wrongdoer who caused the injury.

Landlord not responsible for building code violation

Britney Henley suffered permanent serious injury to her arm when she struggled to close the basement door of her mother's forty-year old rented home and accidently put her arm through the glass.   The door did not close properly and the glass in it was not safety glass--a violation of several statutes including MCL 554.139, 125.536, 125.1383 and 125.471. 

The Court reversed a decision by the trial court, which had refused to grant summary disposition to the defendant.  The Court held that the landlord was under a duty to repair only those unsafe conditions which it was aware of, or which it reasonably should have been aware of.  The injured child's family maintained, reasonably, we think, that it was at least a question of fact with regard to whether the landlord should have been aware of an exterior door in such disrepair that it would not close properly.  The Court rejected this claim and held that as a matter of law, there was no evidence to suggest that the landlord should have known of the unsafe and illegal condition of the door and window. 

We find it appalling that the legislature can pass statutes obligating a landlord to maintain reasonably safe conditions in rental properties, and yet a landlord can escape responsibility, as a matter of law, simply by "mailing in" its responsibility to care for the property.  This is poor public policy and judicial activism at its worst.

Slip and fall claim can't be blamed on toilet bowl cleaner without expert

Francis Mandel used toilet bowl cleaner to clean her bathroom floor, but then two different guests slipped and fell on the tile floor within  24 hours.  She picked up the Comet cleanser to re-clean the area and admitted that the toilet bowl cleaner apparently made the floor slippery.  The Court of Appeals dismissed the injury case brought by the second person to fall, however, suggesting that maybe Deborah Plutschuck fell because she was wearing nylon socks, "which in common experience are not known to provide friction".

Court applies Michigan premises law to "admiralty" law of the seas

When a person is injured on a boat in navigable waters, the so-called rules of admiralty apply to the case.  In effect, the rules applicable to navigable waters are subject to a different federal, rather than state, common law.  Nevertheless, pertinent state law rules can be imposed in admiralty cases when they do not conflict with the underlying rules.  Using this legal theory, a panel of the Court of Appeals grafted the "open and obvious" Michigan premises liability standard on top of the rules of admiralty applicable to an injury suffered on the Clinton River Cruise vessel.  

Tenant cannot sue landlord over unsafe condition of apartment

Although a landlord owes a statutory duty to provide the tenant with a "reasonably safe" apartment, that duty is apparently eliminated if the apartment is owned and rented by a governmental entity.  In Brooks v. The Detroit Housing Commission, the plaintiff sued her landlord, the Housing Commission, claiming that the apartment she rented had become mold-infested and had injured her health when the Commission failed to act to remedy the situation.  The appellate court ruled that the Commission enjoyed govermental immunity with respect to its operation of the apartment complex and therefore could not be held responsible for any injuries caused by its negligence or the negligence of its employees.

Apartment visitor is an "invitee"; landlord owes greater duty than tenant

The law determines the legal duty of a land possessor to visitors based in part on a historic distinction between commercial invitees and social guests.  The latter are only "tolerated" [I guess we all have friends like that.] and the duty to them is lesser.  The premises must normally be made reasonably safe for business guests.   Essentially, the person invited to the premises for a business purpose is owed a broader duty to warn of, or repair, dangerous conditions, even if the visitor might be aware of the hazard, already.  A social guest is owed no duty to warn or repair if he or she was already aware of a danger.

Hazard is "open and obvious" despite code-violation lack of lighting

Allegedly, Katrina Gorges died as a result of injuries suffered when she fell while leaving a friend's home.  She suffered a fractured hip and complications after falling on the sidewalk while leaving at 1 a.m.  Her family alleged that she fell because of the combination of a lack of lighting, an uneven sidewalk, and slipperiness caused by weather conditions. 

Woman who fell on construction ramp denied recovery

This week the Court of Appeals upheld the dismissal of a woman's premises liability claim after she fell and suffered injury.  The woman, Deborah Becker, claimed she was asked to deliver carpet samples to a home under renovation when she slipped and fell on construction ramp that was slippery with dust.  The court held that the hazard associated with the ramp was "open and obvious" and therefore Ms. Becker could not pursue a claim against the homeowner.

Pool operators still struggling to comply with new regulations

On January 23, 2009 the newspaper in Tyler, Texas, published yet another article describing the continuing non-compliance with the federal Pool and Spa Safety Act.   We filed a web log entry on this issue several weeks ago, describing the problem.   The law requiring safety protections was enacted to eliminate the drain hazard in public pools:  these drains have trapped, disemboweled or otherwise injured numerous swimmers over the years.  They are a particular hazard for children.  Enacted in December of 2007, the act allowed operators a full year to comply or face fines:  despite the time allowed and the availability of numerous inexpensive solutions, it is estimated that more than 80 percent of public pools remain out of compliance.  The CPSC records document an average of one-to-two drowning victims per year, usually involving flat pool drains.  The most common remedy is to install a domed drain cover that makes it more difficult to establish a vacuum.

Bette Ball can't sue: she used the wrong door or should have invited herself to spend the night

The Court of Appeals recently applied the Engler Majority's analysis of slip and fall claims to dismiss a claim brought by a lifelong resident of Michigan who fell and was "seriously" injured while leaving a friend's home.  The friend had a white ceramic tile porch that was covered with a thin dusting of recent snow.  Ball had entered safely, exercising great care, but when she attempted to leave she slipped and fell.  As she was lying on the porch, she found a small area of ice that she had not noticed in the area where she had stepped.

City's insurer's objections to notice requirements are rejected

In almost all situations where an injury victim seeks to make a claim against a governmental entity in Michigan, the victim is required by law to give formal notice to the at-fault governmental entity.  In the case of claims arising out of highways and sidewalks that are allegedly not maintained in a condition that is "reasonably safe for public travel", the injury victim must give notice to the entity having jurisdiction over maintenance of the sidewalk or highway within 120 days.  The Engler majority recently reversed the long-standing Supreme Court holding that the victim would be relieved of this requirement if the governmental entity suffered no prejudice from the failure to give notice.  Among many other anti-victim decisions handed down by the 4-3 majority of Engler appointees, the Court held that the Notice requirement would be strictly upheld, regardless of whether the governmental entity had actual notice of the defect and injury.

Court rejects claim based on construction activities that interfere with driveway

The Court of Appeals recently rejected Rudy Denha's injury claim against Dart Properties.  Dart owns an apartment complex and had torn up the asphalt just inside its driveway.  Denha claimed that a tenant made a left turn in front of him and then stopped abruptly, when she encountered the construction activities, blocking his lane of travel.  The tenant at-fault driver testified she didn't recall hesitating after attempting to enter the driveway, but Denha presented other testimony tending to corroborate his claim. 

Court upholds verdict against farmer in death caused by falling bale of straw.

Nicholas Jimkoski purchased straw from Peter Shupe.  Unfortunately, when Shupe attempted to load the 700 pound bales on Jimkoski's vehicle, he could not remove one bale that was stacked 11 feet above ground and frozen to the stack.  Shupe left that bale where it was and loaded Jimkoski's truck with bales that were stored partially beneath it, leaving the bale balanced precariously above Jimkoski's truck.  As one might expect, the bale ultimately fell; when it did, it narrowly missed Shupe, struck Jimkoski and killed him.  A jury concluded that Shupe was negligent, that Jimkoski was also negligent (and reduced his verdict by his share of fault), and awarded Jimkoski's family damages for Shupe's percentage of fault in causing the death.  Shupe's insurer appealed, claiming that Shupe could not be sued because the risk of injury to Jimkoski was "open and obvious".

Court of Appeals overturns jury verdict based on trip over floor grate

Sandra Ellis sued the homeowner after she tripped while entering his garage at 10 pm and fell suffering serious injuries.  The jury returned a verdict holding the homeowner responsible for 51 percent of her injuries, apparently believing Ellis's claim that because the garage was dark, she did not see the floor grate just inside the garage door.  The Court of Appeals overturned her verdict and dismissed her claim, holding that her testimony was not adequate to prove that the grate was not "open and obvious" as claimed by the homeowner's insurer and the homeowner's witnesses.

Pools and spas require new drain covers on Saturday to protect children

Last year, Congress passed a broad new law requiring that public pools and spas be modified to prevent children from being trapped under water.  The rules go into effect on December 20, 2008, and Newsday.com reports that many pools remain out of compliance.  The Consumer Product Safety Commission announced this week that it will focus its enforcement efforts initially on public baby and wading pools and in-ground spas with flat drain grates and only one drain.  It considers these pools to be the most dangerous.  A spokeswoman noted that the federal government did not allocate any money to the CPSC to enforce the new rules.

Premises' owner not responsible for head injury caused by door that jumped its track

In Hartfield v. Stop 'N Lock Properties, the injured man's claim against the property owner where he was hurt was dismissed by the trial court and the Court of Appeals.  Hartfield's attorneys claimed that the owner should have known that the injury-causing door was dangerous, and would have known of its dangerous condition if it had properly inspected its property on a timely basis.   Hartsfield's attorneys argued that the evidence at least created a question of fact for the jury to resolve regarding this issue.

Court affirms verdict for woman who fell through unguarded access hole in attic

In Evans v. McBride, the Court of Appeals upheld a jury's decision that the homeowners' insurer should compensate a women who fell through an access hole that was covered only by drywall. The insurer posed numerous objections to the verdict, including claims that the homeowner owed no duty to warn of the danger, that the woman who fell should have observed it in time to avoid the hole, that the plaintiffs should not have been able to instruct the jury that the hole was a violation of a municipal ordinance, and raised other technical complaints with how the trial was conducted. The Court of Appeals dismissed these objections and upheld the verdict, noting in particular that the Defendant was aware for months that the plaintiff intended to establish the violation of a safety ordinance, and that the ordinance was relevant to showing that the access hole was an unsafe condition.

Interpreting the two-inch sidewalk rule

Diane Gadigan suffered serious injury when she fell on a City of Taylor sidewalk.   The sidewalk where she fell was joint of two "teeter-totter" slabs where neither side demonstrated a full 2" high defect or discontinuity.  The City argued it could not be held responsible for her injury because the statute addressing sidewalk defects as an exception to governmental immunity immunized the City from defects of less than two inches.  The Appellate Court had to explain to the City how to interpret statutory language.

Court holds freight elevator is "open and obvious" hazard; owner owes no duty to make safe

Loveland v. Spectrum is yet another example of bad facts creating bad law.  The plaintiff sued Spectrum Hospital after he fractured a finger attempting to stop the hospital's freight elevator from closing.  His injuries may not have warranted an expensive lawsuit, and his attempt to stop the freight car's doors from closing certainly evidenced substantial negligence on his own part.  Nevertheless, his case ultimately generated a legal holding that defies common sense or good judgment.