Late last year, an appellate court in New York issued a written opinion in a bicycle accident case, affirming a lower court’s decision not to apply governmental immunity. In the case, Turturro v. City of New York, the court determined that the alleged negligence was regarding a “proprietary function,” rather than a governmental one, and therefore government immunity was not appropriate.

City IntersectionThe Facts of the Case

The plaintiff, a 12-year-old boy, was riding his bike on a four-lane New York street at 6:30 in the evening when he was struck by a vehicle traveling at an estimated speed of 54 miles per hour. The speed limit was 30 miles per hour. The driver was cited for reckless driving in a criminal case, and he pleaded guilty.

The plaintiff then filed a civil lawsuit against the driver as well as the City of New York. Evidence was presented that several citizens and lawmakers had written to the Department of Transportation, asking the city to do something about the dangerous road. Specifically, citizens were concerned that drivers were speeding and drag-racing. The city presented evidence that in response to the letters, it had commissioned a study on motorists’ speed and notified the police of the findings. However, the plaintiff pointed out that no traffic-calming measures – such as road bumps, rumble strips, or raised crosswalks – were implemented. After a jury trial, a verdict was issued in favor of the plaintiff. Specifically, the jury determined that the driver was 50% at fault, the city 40% at fault, and the plaintiff 10% at fault.

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One can easily imagine a world in which a defendant fearful of an upcoming lawsuit destroys internal company documents that the defendant knows may be harmful to its case. This fear of the destruction of evidence in anticipation of litigation gave rise to the doctrine of spoliation. Essentially, the doctrine of spoliation allows for a judge to impose sanctions on a party if they destroy or alter relevant evidence in anticipation of an upcoming case.

TireThere are several sanctions available to a court when it finds that a party has engaged in spoliation. Most commonly, the judge will prevent certain evidence from being admitted. Alternatively, the judge may provide the jury with an instruction regarding the missing evidence and how, if preserved, it would likely disfavor the party that was responsible for its destruction. Moreover, in some extreme circumstances, a court can enter judgment against the spoliating party.

Not all pre-trial destruction of evidence, however, will be considered a violation of the spoliation doctrine. As a recent case illustrates, sometimes a party destroys evidence without thinking about an upcoming case.

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Recently, the Supreme Court of the State of North Dakota released an opinion in a personal injury case against a city in charge of the maintenance of a park where the plaintiff fell while rollerblading. The case stemmed from an incident in which a young woman was injured while rollerblading over a soft patch of material used to repair a crack on a park pathway.

Cracked PavementThe city moved to dismiss the claim, arguing that it was not properly served. In turn, the plaintiffs then properly served the defendants. However, proper service was made just after three years from the date of the accident. The park district moved for summary judgment, claiming that the plaintiffs’ claims were barred due to the three-year statute of limitations for claims against a political subdivision. The lower court dismissed the case and agreed that the case was barred by the statute of limitations.

The plaintiffs appealed and argued that the claim did not accrue until a later date, when they were informed by an attorney that there was a reasonable negligence claim against the city. However, the appellate court determined that, despite the discovery rule, the statute of limitations begins to run from when the negligent act occurs. Unfortunately, since the city was improperly served, the case did not abide by the requirements of the statute of limitations. Thus, the court affirmed the lower court’s decision.

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An ongoing investigation into the deadliest hot air balloon accident in United States history has revealed that the pilot of the balloon had seven different potentially mind-altering drugs in his system at the time of the crash. According to a National Transit Safety Board press release noted in a recently published national news article, several drugs were found in the blood of the balloon operator after he died, along with all 15 passengers on board the craft, when it struck high-voltage power lines during a descent, caught fire, and ultimately crashed into a field near Lockhart, Texas. Although authorities have not determined the exact cause of the tragic event, it appears that drug intoxication may have played a role in the deadly accident.

Hot Air BalloonsA Dangerous Combination of Psychoactive Substances Was Present in the Pilot’s Blood

According to the report, the substances found in the man’s system included drugs used to treat anxiety, severe pain, depression, muscle spasms, attention deficit disorder, and insomnia, among other ailments. Even though the report states that the pilot was legally prescribed the drugs found in his system, several of the substances he had consumed would prevent an airplane or helicopter pilot from legally operating an aircraft, although hot air balloon operators are not subject to the same regulations as other pilots. Taken individually, these types of drugs could impair a pilot’s ability to safely control a hot air balloon, but when several different psychoactive drugs are taken together, the effects can multiply, and a dangerous level of impairment becomes even more likely.

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Earlier this month, an appellate court in West Virginia issued a written opinion in a personal injury case filed against the state’s department of transportation by the son of a woman who was killed in a car accident. In the case, Department of Transportation v. King, the court determined that the Department of Transportation (“the Department”) was entitled to governmental immunity and reversed the lower court’s decision that had allowed the plaintiff’s case to proceed against the government agency.

Smashed CarThe Facts Giving Rise to the Case

The plaintiff’s mother was killed in a car accident that was caused by another driver. The at-fault driver possessed a valid license at the time of the accident that was issued by the Department. However, the driver’s license had been suspended several years prior and had only recently been reinstated.

Evidently, when the at-fault driver applied for reinstatement, the Department issued the license without submitting relevant medical forms to the Department’s medical advisory board. There were rules in place governing when a referral was proper, but those rules allowed for the Department to use its discretion in making referrals. The plaintiff’s claim was that the Department’s failure to refer the at-fault driver’s application to the review board was negligent.

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In early November, the Supreme Court of Connecticut heard oral arguments stemming from a governmental immunity matter. According to the court’s written opinion, the plaintiff was hit by a vehicle near his school’s driveway. Through his parents, he brought a lawsuit against several defendants, including the superintendent and assistant principals of the school. The plaintiff argued that the named defendants negligently supervised the school’s staff and students, and as a result the plaintiff suffered injuries.

SchoolyardThe defendants moved for summary judgment, arguing that they enjoyed governmental immunity and could not be held liable. The trial court agreed and found that the defendants’ duty to supervise the students and staff was considered discretionary, and as a result governmental immunity applied. The trial court also found that although the superintendent and principals had a ministerial duty to assign staff to guard the lot, these administrators were also entitled to summary judgment because they fulfilled their duty by creating a schedule of assigned staff to monitor the lot. However, on the day in question, there was no staff member monitoring the lot because the scheduled staff member was out sick.

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The Supreme Court of Kentucky recently published an opinion in a slip-and-fall case that was appealed to the court by the plaintiff. According to the opinion, the accident occurred in 2011 when a guest and his wife were attending a convention at the defendant hotel. Evidently, the plaintiff slipped and injured himself when he was getting into a bathtub in his hotel room. According to the facts as determined by the appellate court, the bathtub did have a safety bar, but it did not have a bathmat. After his injury, the plaintiff notified the hotel of his injury, and employees subsequently provided him with a bathmat.

Bath FaucetThe guest filed a lawsuit against the hotel. The plaintiff’s premises liability claim asserted that he was an invitee of the hotel, the bathtub was slick and should be considered a dangerous condition, the hotel failed to exercise reasonable care in maintaining the bathtub, and his injuries were a result of the hotel’s negligence.

The hotel filed a motion to dismiss the case, and the lower court granted summary judgement, holding that the hotel did not assume the duty to provide bathmats to all of the rooms just because some of the rooms had them. The court also held that a hotel is not “an insurer of a guest’s safety.” The plaintiff appealed this decision all the way to the state supreme court. That court reversed the lower court’s decision and found that the hotel did have a duty to take reasonable steps to address and mitigate any dangerous conditions at their hotel. The question remains whether the hotel took adequate measures to protect the plaintiff, so the case was remanded back to the lower court for further analysis.

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Recently, the Supreme Court of Mississippi remanded a negligence case back to the trial court for a new trial after the court determined that the trial court allowed improper expert witness testimony and an improper closing argument. The case stemmed from a 2008 incident in which a woman who was in a nursing home fell and broke her hip following a surgical procedure to repair her fractured hip. Sadly, the woman ended up passing away several days after the fall.

Hospital BedsHer family brought a lawsuit against the nursing home, making several claims, including:

  • Failing to provide the appropriate number of staff for the residents;
  • Failing to provide a sufficient nursing plan;
  • Failing to take reasonable steps to prevent or eliminate dangers in the nursing home; and
  • Failing to seek a doctor’s guidance with regard to the specific needs of the woman.

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Recently, a California appellate court released its opinion regarding a medical malpractice lawsuit stemming from a 2012 accident. According to the court’s recitation of the facts, the plaintiff was a patient at the defendant hospital, and he was being transferred by an ambulance agency, another named defendant. During the transfer, the gurney tipped over, and the plaintiff fell to the ground, suffering several injuries, including fractures to his patella and clavicle.

AmbulanceAbout two years later, the man filed a lawsuit against the hospital and ambulance agency, alleging several causes of action, including premises liability, negligence, and personal injury. The statute of limitations for general negligence cases in the jurisdiction is two years, but it is only one year for medical malpractice cases. Both defendants filed summary judgment motions, claiming the case was one of medical malpractice and asking the court to dismiss the case. Several months later, the trial court granted the summary judgment motions.

After the court granted the defendants’ motions, the plaintiff then filed an appeal, asking a higher court to review the lower court’s decision to classify his case as a medical malpractice claim. However, the appellate court found that the transfer of the plaintiff on the gurney was “related to” his medical treatment, and therefore the claim should be considered one of medical malpractice. Thus, the one-year statute of limitations applies to both the case against the hospital as well as the case against the ambulance company.

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The United States Court of Appeals for the Fifth Circuit recently released an opinion affirming a lower court’s decision that summary judgment should be granted in favor of a defendant in a product liability lawsuit. The case stems from a tragic traffic accident that occurred when a passenger died when he was traveling as a passenger in the back of a vehicle.

Road SignAccording to the court’s written opinion, the vehicle crashed into another vehicle and began spinning, colliding with many nearby objects. Unfortunately, a yield sign was one of the objects that was hit, and the stationary base of the sign was forced underneath the vehicle and cut through the fuel tank. At that point, the fuel tank began to leak. The driver and front passenger were able to safely exit the vehicle; however, the three passengers in the back were not able to escape because the doors would not open. As the passengers were trying to escape, the car became engulfed in flames.

The family of the three passengers killed brought a product liability lawsuit against the car’s manufacturer. They claimed that the design of the car’s fuel tank was faulty and that the company should have taken reasonable steps to design and manufacture a gas tank that would not be prone to explosions after this type of accident. The plaintiffs attempted to produce expert testimony, but the defendants successfully moved to exclude the testimony. As a result, it was determined that the plaintiffs did not have sufficient evidence to raise a genuine issue of material fact.

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