In this week’s installment of how DubiLaw has established itself as “Trial Counsel to The Profession,” I want to focus on premises liability; specifically, the unforeseeability of the injuries that people sustain on other people’s property and the ways in which they sustain them.
Many of the attorneys who do not practice personal injury law and therefore refer their injured clients to me are amazed at the nature of their clients’ accidents and the seriousness of their resulting injuries. So are their clients. As many of them say, “There was no way I could have seen this coming and therefore avoided it.” They are right. There was no way to foresee it.
The Elements of Negligence
As you may already know, in order to prevail in a premises liability case, the injured plaintiff must prove the following five elements:
1. That the defendant had a duty to the plaintiff
2. That the defendant breached this duty
3. That the defendant’s breach caused the plaintiff’s injuries
4. That the defendant’s breach was the proximate cause of the plaintiff’s injuries
5. That the plaintiff suffered actual physical injuries and therefore damages
Causation means that but for the defendant’s negligence, the plaintiff would not have been injured. Proximate cause, on the other hand, means that the defendant, not the plaintiff, knew or should have known; i.e., foreseen that one or more conditions on his or her property could cause injury to anyone present. The following two DubiLaw success stories should make both causation and proximate cause clear.
The Yoga Student
An attorney referred his injured client to me, a woman who had suffered a serious knee injury at a yoga studio. The woman was a regular student at the studio and was attending one of her classes, which was overcrowded that day. All of a sudden, the male student next to her unsuccessfully attempted to do a headstand and fell on her, injuring her right leg. There was no reason for him to attempt a headstand; it was not one of the yoga postures being taught. There was no reason why the woman should have foreseen that he would do it, let alone fall on her while attempting it.
An MRI revealed that the woman had suffered a complete ACL tear, bruises to her anterior femoral condyle and mid-lateral plateau, and tenderness to her medial meniscus. She underwent extensive knee surgery and substantial physical therapy. She had already amassed $35,000 in medical expenses at the time I got her case, and there was a strong likelihood that she would require further treatment, therapies and medications in the future, possibly including knee replacement surgery. I sued both the man and the yoga studio, whose instructor knew from prior experience that the man was given to “doing his own thing” rather than following instructions during class.
Although I took this case to mediation, the man and his attorney were unreasonable, so we proceeded to trial. At that point I had already obtained a $250,000 privately negotiated settlement with the yoga studio. Just prior to jury selection, the man and his attorney agreed to a $200,000 settlement, for a total of $450,000 for my client.
The Police Officer
Another attorney referred his injured client to me, a police officer who, in the course of his police duties, suffered a broken toe as the result of falling into an open hole in a street. The accident happened at night, the street was unlighted, and the hole was not guarded or marked in any manner. A cellphone provider had obtained a permit to lay cable at the site, and its subcontractor had left the open hole without putting up barricades or any other warning.
During a dark July night, the police officer fell into the unguarded hole, injuring his right foot. He immediately went to the hospital where an x-ray confirmed that his right second toe was fractured. He was given a boot and crutches and told to keep his foot elevated and see a podiatrist. He did so the next day and it turned out to be the first of numerous such appointments over the next two years. Ultimately the doctor performed arthroscopic surgery on his toe. The officer incurred substantial medical expenses and lost substantial time away from work on two separate occasions.
The municipality’s law imposed strict liability on the cellphone provider and its subcontractor since the victim was a police officer injured in the line of duty. Obviously it was foreseeable that the open hole could cause pedestrian injuries, especially at night. It did in fact cause the police officer’s injuries. Taken together, these two things were more than sufficient to prove both causation and proximate cause. I took this case to mediation and obtained $160,000 on behalf of the officer.
If you need outside counsel to help you serve your personal injury clients better, please call me toll-free at 833-FOR-DUBI (833-367-3824). I will be happy to talk with you and explain in further detail how I can be of service to you and your clients.