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Hamilton & Associates, Lawyers > Slip and Fall & other Injuries on Property

Accident Compensation for Reduced Ability to Become Pregnant [Lawyer Tutorial]

Posted on by Matt Hamilton

HOW TO WIN COMPENSATION WHEN AN ACCIDENT REDUCES YOUR ABILITY TO GET PREGNANT

The least visible injuries too often cause the greatest harm.  This is an unfortunate fact.  For example, an accident reducing the happy prospect of a future child is worse than a broken arm, or a cut leg.  Unfortunately, our legal and medical systems do a poor job of dealing with these serious injuries; injuries that reduce fertility.  This article teaches a manner of overcoming and winning compensation for the diminished ability to get pregnant.

Injury accidents cause severe changes in lifestyle and physical ability.

  • Accident injuries can cause a lengthy time period where the body undergoes great stress.
  • Disability reduces the ability to exercise.
  • Treatment can alter diet.
  • Medications alter your physiological condition.

Injury can Harm Fertility:  Any number of these factors can reduce the ability of a female victim to become pregnant.  Weight gain can alter menstrual cycles. Pharmaceutical drugs can negatively affect fertility.  Many injuries have the side effect of diminishing ovulation and other reproductive cycles.  Doctors, lawyers, and insurance adjusters often don’t think of this harm.  However, for a family, planning a child, this can be the single most important aspect going on in their lives.

No one would want to take a child away from someone and replace it with disability, pain, and medical treatment.  Unfortunately, this is too often the case.  To make matters worse, compensation is difficult to win through lawsuits if the courts do not allow physician testimony of the reduced ability to become pregnant.

There is a way to overcome the legal barriers.

First, a great accident lawyer will educate the court that the reduced ability to become pregnant is present in the “pleadings.”  This means that in his original petition for damages or complaint, the injury accident lawyer actually writes as an item of damages the reduced pregnancy disability.  This will allow an initial relevance finding by the court.

For example, the following courts have made similar rulings.

There are many Continuing Legal Education programs that teach how to create continuity of your pleadings from the beginning of the case until trial.  It is easy for the accident injury lawyer to get lulled into complacency and fail to do this.  True, each case is unique and has novel evidence.  However, most cases overlap with their concepts of fault, injury, and evidentiary concerns.  Most cases do not require lawyers to build the habit of a consistent case theme.  However, this should ALWAYS be on the list of things to do.

Remaining consistent in pleadings is especially important when the accident lawyer anticipates bringing an unusual claim, like fertility loss (reduced chance of pregnancy) as an item of damages.  This should be an ongoing theme among the pleadings, so your judge may more easily remember the case and be motivated to learn its merits.  A Trial Brief is not enough.  Start with your Petition for Damages, then include the concepts in injury interrogatories, requests for the production of documents, requests for admissions, motions in limine, and so on.  Ask questions about the fertility-loss theme in depositions, even when the witness does not directly have information on fertility-loss.  Remember, your case is about what your case spends time being about!

Second, the lawyer needs to gain an expert opinion from a treating physician (or recognized medical expert) as to the reduction of pregnancy possibility.  The relatively unknown, but instructive case of McKersie v. Barnes Hospital, 912 S.W. 2d 562 (Mo. App. 1995) is educational on this topic.  In McKersie, the Missouri Court of Appeals considered a victim who had an accident.  The accident reduced the victim’s ability to get pregnant.  Ms. McKersie was treated in an emergency room by an intern.  That intern was negligent and failed to diagnosis her appendicitis.  As a result, Ms. McKersie’s appendix ruptured.  This required her right ovary and her Fallopian tube to be removed.  Her appendix was also removed.

Her treating physician gave testimony that her lack of a right ovary and Fallopian tube reduced her statistical chance of reproducing and having a child.  The problem was that Ms. McKersie was still capable of having a child.  Indeed, her physician indicated that it was still “more likely than not” that she was capable of conceiving, in spite of her accident disability.  Nothing indicated an “extra problem” as to conceiving a child.

Still, Ms. McKersie sought money for compensation for the damage of reducing her ability to conceive.  The court agreed.  Her treating physician’s opinion was sufficient to support an item of future damages to Ms. McKersie.  Even though she was still more likely than not capable of having more children, Dr. Swartz’s testimony that her ability was diminished due to the loss of her ovary and Fallopian tube could be presented to the jury as an item of damages she suffered from this accident malpractice.

What You Should Do:  So too, in your case, the reduced statistical likelihood of conceiving can and should be an item of damages you claim.  It is harm you have suffered.  The mental stress will be certain; irrespective of whether you become pregnant.  The life stress will be certain; irrespective of whether you become pregnant.  So too, your reduced chance of pregnancy should be compensated.

reading law bookAuthor:  Matt Hamilton

of Hamilton & Associates, Lawyers

  • Juris Doctor
  • Trial Attorney

 

 

How a Business can be Sued for the Criminal Acts of a Non-Employee

Posted on by Matt Hamilton

How Can a Business be Sued for Criminal Acts by a Non-Employee?

Pedestrian Hit by a Car in a Parking Lot

It is Saturday night. Robert owns a local coffee shop.  This coffee shop is a building and a parking lot next to a crowded street.  Young people like to congregate and socialize in its parking lot Saturday nights.

Bob’s Coffee Shop tolerates the people hanging out in its parking lot.  Perhaps Bob remembers when he was young.  Perhaps it increases his customer base.  Perhaps Bob is simply busy with the running of the business and tolerates their presence, having fun on his coffee shop property.

The kids like to stand around and socialize.  Others “hot rod” through the parking lot.  They speed; they play chicken; some even drive drunk.

One Saturday night is particularly busy.  There are a number of people hanging out in the parking lot.  Others are showing off driving through, speeding, drinking, and driving.  A young girl gets hit by one of the drivers.  Can the victim hire an auto accident lawyer to sue Bob for failing to kick the drivers or pedestrians out of his parking lot?

The General Rule; the Owner Cannot be Sued.

The general legal rule is that business owners do not have a duty to protect their invitees from the criminal acts of third parties. See Posecai v. Wal-Mart Stores, 752 So.2d 762 (La. 1999); Sturbridge Partners, Ltd., et al. v. Walker, 267 Ga. 785, (1997).

Owners do not generally have a duty protect their people on their property from the negligence of others who do not work for them or represent them.  Burnett v. Stagner Hotel Court, Inc., 821 F.Supp. 678, 682 (N.D. Ga. 1993). There is an exception.

The “special facts and circumstances” exception that creates business liability.

A business owner can be liable to a victim on his property even when the perpetrator had nothing to do with the business owner.

The special facts and circumstances exception applies with the following test:

  1. Is the perpetrator a third party? (Not the business itself or one of its agents)
  2. Is the perpetrator known to be violent? Did the person behave in a way that indicated danger was on the premises?
  3. Did the business owner have sufficient time to prevent an injury?

Ali Aziz v. Jack in the Box, 477 S.W.3d 98 (Mo. App. 2015).

Foreseeability is the Key

Foreseeability

Our Supreme Court has spoken about this issue.  The “touchstone for the creation of a duty is foreseeability.”  Madden v. C & K Barbeque Carry-out, Inc., 758 S.W.2d 59, 62 (Mo. 1988).  It’s all about the facts of the situation. Is there a foreseeable likelihood that failing to act will cause harm?  Then you likely have a duty.

Can the business owner anticipate that acting in the way that he does will cause injury?  Then there is duty.  In Aziz, there was a fight in a parking lot and Jack in the Box was held $20.5 million dollars liable for the resulting harm.

In another case, an innocent victim was raped in a gas station parking lot by an unknown person.  The court and the jury found the circumstances created a dangerous situation for the victim that the gas station owners could have fixed.  Instead, the owners did nothing and she suffered great harm.  Richardson v. QuikTrip Corp., 81 S.W.3d 54 (Mo.App. W.D. 2002).

Do We Actually Need To Know About The Threat?

Actual notice of a specific threat is not a requirement to be held liable for accident injuries on property.  There is only the requirement that someone (a third party; not connected with the business) acts in a way that indicates a danger on the business owner’s property and that also there is sufficient time to prevent that injury.

Does The Danger Always Have To Be To The Actual Victim?

The law refers to these people as “invitees.”  These are people who come to the property because the business invites the public generally.  They may also come with a specific expectation of some benefit by being on the business owner’s property.  We are talking more about customers and less about burglars.

The anticipated risk of injury does not have to be to the actual victim that winds up getting hurt.  The victim merely needs to be in the class of people or the type-of-person who is put at risk.

Referring to our example of Bob’s Coffee Shop, the crowd generally was at risk for being hit by an automobile and creating a pedestrian auto accident.  It is not necessary for the victim to have been there a long time or acted in a particular way.  This is more about a duty of care to prevent an injury by a known danger or a danger that could have been revealed by an adequate inspection.  The victim does not need to actually enter the business.  They do not actually have to complete a transaction. Aziz, 477 S.W.3d 98.

Conclusion

Pedestrian auto accidents are some of the most harmful events caused by cars.  The victims do not have the benefit of the protection of seat-belts and roll cages or airbags.  Business owners need to be mindful of all types of injury on their premises and not merely turn a blind eye because they are not the direct perpetrator.  If they do, they may find themselves with a personal injury lawsuit and claim against them.

Author:

Matt Hamilton of Hamilton & Associates, Lawyers

  • Juris Doctor
  • Trial Attorney

 

Bibliography:

Jessica Agnelly, Court Analyzes Business Owner’s Duty Owed to Invitees from Criminal Acts of Third Parties, Mo. Trial Atty., 16 (Winter 2016).  https://www.matanet.org/

Sean Martin & Allison Carr, Are You as Guilty as the Criminal? Liability for Criminal Acts of Third Parties and Employees, FDCC Winter Meeting (2014).  http://www.thefederation.org/documents/01.Are%20You%20as%20Guilty.pdf

 

How to Overcome Uncertain Treating Physician Testimony in Prosthetic Amputation Lawsuits

Posted on by Matt Hamilton

How to Overcome Uncertain Treating Physician Testimony in Prosthetic Amputation Lawsuits

Amputation cases, especially where a prosthetic is needed, present unique legal problems.  The amputee may presume the cost of future medical treatment is a certainty.  This is far from the truth.  A number of problems may rob the accident victim of their ability to pay for future prosthetic costs and other medical treatment.  This article teaches ways to overcome medical physician testimony problems.

Treating physicians often tell an amputee victims that the accident was certainly the cause of their injury. The Doctors will say they will “back them up” with whatever help they may need.  Once the lawsuit starts, and insurance companies ask questions, the doctors retreat.  Their testimony can even be harmful.  The primary method is the doctor appearing to support the patient; but in reality the Doctor’s testimony harms their patient’s legal needs.

Physician Failure to Understand the Legal Standard

The problem is the standard to get testimony into evidence in court.  Courts have requirements called “foundation.”  A witness may “say” something; but if what the witness says does not have a foundation, the jury or judge will not consider (or even hear) it.

Mixing “Certainty” up with “Reasonable Medical Certainty”

With physicians, this is the “reasonable medical certainty” standard.  For example, in Missouri, the Supreme Court ordered in cases like Swartz v. Gail Webb Transportation Corporation, 215 S.W. 3d 127, 130 (Mo. banc 2007), admissible evidence must be “to a reasonable degree of medical certainty.” This means it must be “more likely than not” or greater than 50% likely.

Herein lies the problem.  Physicians will quaff that they cannot say with absolute certainty or cannot be accurate in predicting what a patient will suffer or need in the future and therefore cannot say with certainty.  This will mean their testimony does not get into evidence and the amputee victim loses.

Dr. Jonas Rappeport, MD, wrote a lengthy article about physician uncertainty and legal testimony in 1985.  Reasonable Medical Certainty, Bull. Am. Acad. of Psychiatric Law, Vol. 13, No. 1, 1985.  In that article, Dr. Rappeport called the American legal standard a “legal fiction” and void of any practical meaning for physicians.  In essence, if a doctor cannot meet this legal standard, he is saying nothing at all.

Passive Qualifying Words

A second problem is physicians that give opinions, saying words like “might,” or “possibly,” or “could.”  Again, these are not opinions to “a reasonable degree of medical certainty” and may be excluded by a trial judge.  A Missouri court as early as 1965 addressed this.

The Court in Bertram, v. Wunning, 385 S.W. 2d 803 (Mo. App. 1965) considered the standard.  Herein, the court indicated that expressions like could, might, or possibly are common instances of language used by experts in the field.  The court recognized that as long as the physician indicates his opinions are to a reasonable degree of medical certainty, even though the physician may use qualifying language, the testimony is admissible.  Thus, the first problem with physician uncertainty is overcome.

The Uncertain Future of the Patient

A second problem is the uncertainty of future medical treatment or repercussions.  Doctors helping amputation victims cannot see the future.  Future treatment or negative outcomes may be dependent upon events that do not occur.  This second problem is physicians saying this may not occur unless one or two or three other events happen.  Therefore, they give the opinion they cannot say to a reasonable degree of certainty because they do not know the certainty of these future events.  This challenge can also be overcome.

Events that May Only Occur if Something Else Happens

The Missouri Supreme Court in the case of Bynote v. National Supermarkets, Incorporated, 891 S.W. 2d 117, 124-25 (Mo. banc 1995) addressed this issue.  The court ruled that evidence of future treatments and even its costs may be admitted before a trial court or jury.  The evidence can “come in” even when the medical treatment would be dependent upon the outcome of other events, such as more conservative medical treatment.

In Bynote, the court considered a victim that would only need the additional treatment, if they later began suffering a locked back.  Surgery was possible but not recommended by the treating physician.  Still, it was admissible as a possible future consequence.

The Missouri Supreme Court in the case of Breeding v. Dotson Trailer Repair, 679 S.W. 2d 281, 283 (Mo. banc 1984) considered a case where the patient did not want the surgery.  In Breeding, the accident victim testified they did not want surgery.  Furthermore, the victim’s physician indicated surgery would only be needed if and only if conservative treatment failed.  Still, since surgery was a possibility given future events, it was admitted.

This was later expanded in the case of Emery v. Wal-Mart Stores Incorporated, 976 S.W.2d 439 (Mo. App. 1998).

These are two ways in which uncertain physician testimony can be admitted so that an amputee can receive compensation for future treatment, even when it is uncertain or dependent upon other factors.

Look to other materials on our page for Amputation Lawyers and personal injury claims.

Author:

Matt Hamilton

  • Trial Lawyer
  • Juris Doctor

 

When Should I Lie to My Lawyer?

Posted on by Matt Hamilton

Trial attorney Matt Hamilton explains the reasons, advantages, disadvantages, and issues that arise from the common occurrence of a client who lies to their own attorney.

The common reasons are explained.  The repercussions of the lies on litigation, and case value are explored.

This is a good investment of time for any victim considering telling a lie to their lawyer.  It is good knowledge for any attorney practicing in wrongful death, personal injury, or criminal defense; basically, any field where client interaction is high and the stakes are great.

Matt Hamilton

  • Juris Doctor
  • Trial Attorney

Are You Over Paying for your Accident Lawyer? [Analysis of Fees]

Posted on by Matt Hamilton

HOW MUCH SHOULD YOUR ACCIDENT LAWYER COST?

We have to pay for things every day.  Plumbing breaks.  Electricity fizzles in houses.  Luckily, most of us do not experience frequent injury accidents.  Handling injury accidents requires the expertise of an injury accident lawyer.  Accident attorneys do not volunteer, but are paid.  This article informs on how these lawyers are paid, the amounts, what is, and what is not reasonable.

THE OPTIONS: CONTINGENCY FEE VS. ATTORNEY FEE AWARDS VS. HOURLY

The Hourly Rate Method of Paying a Lawyer

There are three main ways on which attorneys are paid.  The most common is an hourly rate.  Hourly rates are determined by the amount per hour the attorney charges and the amount of time he spends.  The more he works, the more you pay.  Hourly attorneys will keep detailed records of exactly what they are doing and how long they are spending on a particular task.  You should receive a monthly statement.  That monthly statement will indicate the hourly rate and break down (typically in six minute intervals) what the attorney was doing and why he was doing it.

Rates for attorneys vary between $150 per hour and $500 per hour.  How much an attorney charges hourly is based entirely upon what people will pay for his services.  Shopping around can save significant money here.  However, remember, the best attorneys are paid more for a reason.  It is often financially better to hire the more expensive attorney and get the better result.

Remember also, you are paying the attorney for keeping close track of his time, which will be included in the hourly fee.  Hourly pay is common for attorneys and clients who regularly work together.  It is common for an hourly attorney to require a “retainer; an amount of money paid in advance to put towards the hourly fee.

Paying through an Attorney’s Fee Award Case

Sometimes you do not have to directly pay the lawyer at all.  Certain types of cases (like vexatious refusal to pay by insurance) carry with them awards of attorney fees.  This means at the end of the case, if you win, the other side pays for your attorney’s fees.

One would want to check with their particular jurisdiction and particular case type to determine whether an attorney’s fee awards can be expected.  Few cases invoke statutes where attorney’s fees are mandated.

You should be able to understand the contract your own lawyer gives you.  The vast majority of contingency fee lawyers contracts are pages long, with lots of fine print.  Many have “tiered” results, with different payment amounts being paid based upon how far the legal claim proceeds.  This, however, is unnecessary.  For example, the contingency fee contracts my offices uses for personal injury and wrongful death cases, contains ONLY the following language:

I, We, _____________, hereby employ Matt Hamilton, Hamilton & Associates, Lawyers as my attorney to represent me in my claim against _________________, and all other persons considered liable by said attorney for personal injuries sustained by me on the ______ day of ________.  It is agreed that said attorney shall receive ______ percent of whatever is realized on said claim for his services.  Client agrees to pay for expenses incurred in pursuing the claim.  Signed ______________. 

Sometimes, simpler is better.

The British System Versus the American System of Paying Lawyers

There is an old philosophical difference between British law and American law.  In the British model, the losing side always pays for the other person’s attorney’s fees.  In the American model, typically each party (whether they win or lose) pays for their own attorney’s fees.  The American model is preferred because it gives an advantage to the ordinary person who is the victim. Often, corporations will pay tens or hundreds of thousands of dollars to their attorney.  This would mean that a person simply could not afford to take the risk of suing a large corporation and incur that level of expense under the British model.

Paying the Lawyers through a Contingency Fee

The contingency fee is the most common reimbursement for accident injury lawsuits.  The contingency fee is governed by state law.  In it, the attorney takes a percentage of the win; however large or small that may be.  The attorney takes a considerable risk by fronting the expenses.  He advances his efforts in hopes of winning.  If the case loses, the attorney gets nothing, and loses his cost and time.  If the case wins, the attorney gets a generous reward.  Each attorney must take multiple cases in order to justify the risk of being paid through a contingency fee.

Complaints About High Pay Low Effort Contingency Fees

Sometimes clients complain about the generosity of contingency fee versus the amount of time their attorney has spent on it.  This attitude presumes all cases will win.  It also does not take in account the risks and efforts of the attorney.  Lastly, there is the considerable time, training, and monetary investment for the attorney to get his skills to the level to allow for victory.

Contingency Fees are Sometimes Prohibited

Rule 4-1.5 (c) and Rule 4-1.5 (d) of the Supreme Court of Missouri prohibits contingency fees in certain types of cases.  For example, family law and divorce cases cannot have contingency fees.

How Long is the Attorney Required to Work on a Contingency Fee Case?

The Supreme Court of Missouri in the case of In re Crews, 159 S.W. 3d 355 (Mo. 2005)  speaks to this issue.  The Supreme Court of Missouri ruled that it is presumed in an attorney contingency fee agreement that the attorney must represent that party through judgment.

This means if an appeal should be attempted after a judgment, a separate agreement should be reached.  Naturally, contingency fee agreements are creatures of contract.  The parties can agree to whatever specifics they may want if it expressed in the contract.

When is an Attorney’s Fee Unfair?

The Missouri Supreme Court in the case of Murphy v. Dalton, 314 S.W. 2d 726, 733 (Mo. 1958), spoke to the issue of fairness in contingency fee contracts.  These include injury cases and accident cases.  In Murphy, the Supreme Court ordered that every contingency fee contract must be viewed from the point and time and under the circumstances of the parties at the time of the execution of the contract.  This means if circumstances later change, that does not matter.  If certainty or uncertainty change later on that is not taken into account.

Neither the attorney nor the client can view in retrospect (after the fact) regarding the success or failure of the case to determine whether the contingency fee is reasonable.  For example, if both parties are expecting long and drawn out litigation, a jury trial, and perhaps even an appeal, and signed a large contingency fee, the attorney cannot later complain.  On the opposite side of the scale, if the case settles after a simple one page demand letter, the client can no longer complain.  If ten years or fifteen years of litigation ensues and hundreds of thousands of dollars in expenses are incurred the attorney cannot later complain that he should have been paid more.  The reasonableness of a contingency fee is taken at the time that the paper is signed.

WHAT ARE TYPICAL CONTINGENCY FEE AMOUNTS?

Like stairs, contingency fee amounts typically go up in steps.

Thirty Three Percent (33%) Contingency Fees

 A one third contingency fee was once common and nearly ubiquitous. Almost all accident and injury lawsuits were signed up for a one third contingency fee.  This was through the mid-90s.  The philosophy was that one third went to the lawyer, one third went to the victim, and one third paid for past medical and other expenses.

In practice, this was never true.  Some cases had large values and required small amounts of work.  Other cases presented large amounts of work and small value.  “Tort Reform” in the early 2000s vastly increased the cost of doing litigation and increased the cost of making claims for innocent victims.  Many attorneys went out of business.  The surviving law firms had to change, adapt, and improve, just to make less money.  The cost of bringing lawsuits increased substantially.  More experts are now needed.  This requires greater expenses.  One third contingency fees are still common.  However, do not expect to get that amount as an offer from the attorney.  Those are only when competition is high or the value of the case is high with little work.

Forty Percent (40%) Contingency Fees

Forty percent of the total take on the case (not counting expenses) is common nowadays.  This accounts for the increased cost and expertise needed to be victorious in litigation.

Forty Five Percent (45%) Contingency Fees and Higher

Contingency fee agreements where the attorney takes forty-five percent or more of the take are uncommon.  Typically, one will see this in strict product liability product defect cases and manufacturing defect cases.  Medical malpractice and other professional liability cases also can carry contingency fee agreements of this high percentage.  These higher fees are to offset the increased litigation costs (sometimes hundreds of thousands of dollars) and the risky of the case.

WHY SHOULD I PAY SO MUCH FOR A CONTINGENCY FEE LAWYER?

There is an old expression as a joke for divorces.  The joke goes; “Why are divorces so expensive?  Because they are worth it.”  The opposite is true (with the same rational) in contingency fee cases.  Simply put, the client gets more money at the end of the case, does less work, and has fewer headaches on average with a competent contingency fee lawyer working on their case compared to handling it on their own.  High priced contingency fee lawyers tend to get better results and tend to get more money for their clients.  In short, contingency fees are expensive because they are worth the investment.

Author:

Matt Hamilton of Hamilton & Associates, Lawyers

  • Juris Doctor
  • Trial Attorney

Raymore Personal Injury Lawyers’ Analysis of Deposition Testimony of Slip and Fall Witnesses

Posted on by Matt Hamilton

Raymore personal injury lawyers and Belton, Harrisonville and Cass County personal injury attorneys will benefit from this continuing education post.  This is an exemplar status letter from a Raymore personal injury lawyer to his insurance defense client, who is attempting to avoid a personal injury slip and fall claim in the Circuit Court of Cass County at Harrisonville.

This post will assist Raymore personal injury attorneys and Cass County accident injury lawyers in understanding the analysis personal injury defense law firms use in evaluating the testimony of the victims and any witnesses.

The names and some identifying information has been changed to protect the privacy of those involved.

Contact Pleasant Hill personal injury lawyer Matt Hamilton at 816-540-4040 if you have been involved in a personal injury accident.  Each case presents its own unique facts and evidence.  You will want an experienced personal injury lawyer from Cass County to analyze your case to get the best advise on how to proceed with a personal injury claim.

June 26, 2010

Carol Pleasant

Raymore Restaurant’s Inc.

1478 Elm Hill Pike, Suite B6

Raymore, MO 64083

Re:    Case Style:           Harrison, Sandi v. Raymore Restaurant’s, Inc.

Case No.:              11 CV 278932, Circuit Court of Cass County

Date of Loss:        10/09/2008

RSKCo No.:          10478968

Claim No.:            074564-25979

Dear Ms. Pleasant:

Your Raymore personal injury lawyers took the depositions of the accident plaintiff, Sandie Harrison and Floyd Cass, former manager of Raymore Restaurants, Inc. who witnessed events just after the plaintiff’s alleged slip and fall were taken recently.  We have set forth a summary and our analysis of their depositions below for your review.

SANDI HARRISON

RAYMORE PERSONAL INJURY SLIP AND FALL VICTIM

Raymore personal injury accident victim Ms. Harrison is a lady in her middle eighties.  She is of medium height and weight.  She is well-spoken and comes across as intelligent, energetic, honest and frank.  However, she does get confused, has trouble remembering the facts in this case at times and seems frail.  Overall, she will make an above-average witness in front of a Circuit Court of Cass County personal injury jury.

Ms. Harrison is originally from Raymore, Missouri.  She has eleven children; eight girls and three boys.  The oldest child is John Cass, who is sixty-six years old.  Every Friday, and sometimes on Saturday, Ms. Harrison goes out to dinner with John.  For a number of years, they were regular customers of Raymore Restaurant’s.  However, since the restaurant closed in 2009, they now go to “Jim’s.”

Raymore personal injury victim Ms. Harrison is self-sufficient with some age-related limitations.  She lives by herself in Raymore, Missouri.  Her daughter and other relatives help her clean and move things from time to time.  Her son, John, drives her where she needs to go.  Ms. Harrison also needs help opening the door of his van and occasionally needs assistance getting out.  Otherwise, Ms. Harrison takes care of herself.

According to her testimony, Ms. Harrison is in excellent health for her age.  Ms. Harrison wears bifocal glasses.  She has good distance vision but needs the glasses to read.  It appears that her vision is as good as any normal person.  Ms. Harrison has a normal sense of balance and does not have a history of tripping over objects.  She also does not have a significant medical history.  These facts have been confirmed by our Lee’s Summit personal injury lawyers.

Ms. Harrison broke her left wrist approximately forty years ago in Harrisonville, Missouri.  She also was examined at St. Mary’s hospital in November of 2009 for pain.  She states that neither she nor the doctors discovered what was wrong with her.  Her only current health complaints are her occasional back pain and more constant arm pain.  These do not appear related to any Cass County injury accident.

The night of her personal injury slip and fall, Ms. Harrison and her son arrived at Raymore Restaurant’s at their usual time.  The weather was clear and the lighting had not changed from her prior visits.  Ms. Harrison remembers walking toward the Raymore Restaurant’s with her son, crossing a yellow striped handicapped area, tripping over something and falling down.  (Exhibit “A”).  When she looked up, she saw the car-stop just behind her.

Our Raymore personal injury lawyers revealed that Ms. Harrison was inconsistent in her testimony of whether she saw the car-stop before her fall.  Several times she stated that she saw the car-stop both before and after her personal injury slip and fall.  At other times, she stated that she does not remember seeing the car-stop before her fall.  In any event, she cannot think of anything that prevented her from seeing it.  She stated that no other witnesses saw her slip and fall.  Her son was near her at the time.  However, he was walking ahead of her with his back to her.  Ms. Harrison stated she was helped back into the Raymore Restaurant’s by a man and a woman, where she waited for an ambulance to arrive to treat her personal injury.

The Raymore personal injury slip and fall broke Ms. Harrison’s right wrist.  Also, her glasses fell off, were chipped, and needed to be repaired.  Otherwise, she suffered no significant injuries.  She now has a noticeable bump on her right wrist.  Dr. Jelley, her physician, informed her that the bump would dissipate over time.  Her last visit with Dr. Jelley was on December 11, 2008.  The bump on her wrist has not dissipated to date.  Presently, Ms. Harrison now has trouble lifting things and writing.  Ms. Harrison also cannot fully extend her right fingers.  Her arm still hurts and aches on a regular basis from the wrist down to her fingers due to this Raymore personal injury.  Tylenol relieves the pain for awhile. She no longer needs and does not expect to need future medical treatment for her injury.

Ms. Harrison stated to out Raymore personal injury attorneys that the employees of Raymore Restaurant were always kind to her.  She continued to frequent the restaurant even after her fall.  She knows and remembers personal injury clam defendant Floyd Cass and continues to be fond of him.

FLOYD CASS

RAYMORE PERSONAL INJURY WITNESS

 

Floyd Cass is a sixty year old man of medium height and weight.  He is well-spoken and comes across as both honest and forthright.  He remembers this Raymore personal injury accident well and will make an above-average witness in front of a Circuit Court of Cass County jury.  He was a manager at Raymore Restaurant for many years.  Although he no longer works for the company, he continues to have good will toward Raymore Restaurant.

The Raymore personal injury lawyers took the deposition of this accident witness.  Mr. Cass stated that the parking lot, including the area just outside of the restaurant where the plaintiff fell, was very well lit.  The lights were on twenty-four hours a day and were bright enough to read in.  The yellow striped handicapped area where the Raymore personal injury plaintiff claims to have fallen was not meant to be a walk-way for pedestrians despite the fact that patrons walked through it at times. (Exhibit “A”).  Mr. Cass stated that it was placed there to give customers that were in wheelchairs room to exit their automobiles.  The car-stops were placed at the end of the yellow striped wheelchair unloading area to prevent cars from bumping into each other in the parking lot.  The handicapped customers who parked in the yellow striped area would have entered the restaurant using the handicapped ramp, which was located some ten to fifteen feet away.

On the day of the plaintiff’s Raymore personal injury slip and fall, Mr. Cass was acting as a manager at Raymore Restaurant’s.  He remembers the weather as being both clear and dry.  He was working on the waiting line when a customer came into the restaurant and said that a patron had just fallen outside.  Mr. Cass immediately went outside to investigate.  Once outside, he saw Ms. Harrison lying across a car-stop just outside of the restaurant.  It was not the car-stop near the yellow striped handicapped area but rather a car-stop closer to the restaurant’s entrance.  She was lying on her side in a north/south direction with her head to the north.  Her legs were laying on the car-stop.  She was holding her right arm and looked to be in pain.

Mr. Cass immediately went inside and told an employee to call 911, which was Raymore Restaurant’s standard practice in those situations.  He then went outside to check on Ms. Harrison’s health.  Before the ambulance arrived, Ms. Harrison walked back into the restaurant with the help of her son.  It was thought that she would be more comfortable inside.  The ambulance arrived, took Ms. Harrison and her son to the hospital and Mr. Cass returned to his duties.

Our Raymore personal injury attorneys discovered an interesting fact from this accident injury claim.  Mr. Cass is sure that the plaintiff ate in the restaurant and then fell as she was leaving.  This is because Mr. Cass saw the check she used to pay for her meal that day.  In fact, Ms. Cass used the check to write down some of the plaintiff’s information on the Raymore Restaurant’s accident report.

In the weeks following this Raymore personal injury accident, Mr. Cass stated that Ms. Harrison continued to frequent the Raymore Restaurant’s restaurant as usual.  Neither Ms. Harrison nor the Raymore Restaurant’s employees bore any ill will towards each other and remained on very friendly terms.  The plaintiff’s Belton personal injury attorney failed to ask Mr. Cass whether he saw Ms. Harrison in pain or discomfort after her slip and fall accident injury.  Mr. Cass has previously told us that the plaintiff was in great pain in the weeks after her slip and fall personal injury accident.  Sometimes she could not eat and had to rest her head on a restaurant table during her meal because of the pain.  Mr. Cass did not volunteer this information.

Our Raymore personal injury lawyers took the recorded statement of this witness prior to his deposition.  In the recorded telephone conversation before his deposition, Mr. Cass also told this law office that the car-stop the plaintiff alleges to have fallen over was removed several weeks before the plaintiff’s fall.  The car-stop had deteriorated and needed to be replaced.  Mr. Cass believes that the car-stop was replaced the week of the plaintiff’s fall by Raymore Restaurant’s employees.  The day Ms. Harrison fell would have been the first time she had returned to the restaurant since the car-stop had been re-installed.  The plaintiff’s Belton personal injury attorney failed to ask Mr. Cass about this during his deposition.  Mr. Cass did not volunteer the information.

Mr. Cass testified that no one to his knowledge has ever reported tripping or falling over a car-stop at the Raymore Restaurant.  He remembers that a customer once slipped and fell in the parking lot during a rain storm.  However, he recalls no other personal injuries outside of the building.

ANALYSIS AND FURTHER HANDLING OF THIS

RAYMORE PERSONAL INJURY ACCIDENT CLAIM

The legal issues in this case will likely turn on whether the placement of the car-stop presented an unreasonable risk of harm to Ms. Harrison.  In Missouri, the elements of a submissible slip and fall case are (1) the existence of a property defect and (2) at least constructive knowledge on the defendant’s part.  Cox v. J.C. Penney Co., Inc., 741 S.W.2d 28, 29 (Mo. banc 1987).  First, a “defect” is a condition which creates an unreasonable risk of harm to a third party.  Wyatt v. Southwestern Bell Tel. Co., 573 S.W.2d 386 (Mo.App. 1978).  Owners, like Raymore Restaurant, have an obligation to exercise ordinary care to keep their premises in a reasonably safe condition.  Id. However, they are not an insurer and do not owe persons on their premises absolute safety.  Larrea v. Ozark Water Ski Thrill Show, Inc., 562 S.W.2d 790 (Mo.App. 1978).  Second, “knowledge” on the part of a defendant is established when the defendant knows or by the exercise of ordinary care can discover the existence of the “defect,” and thereafter, has sufficient time to either correct or warn of the condition.  McElroy v. S.S. Kresge Co., 244 S.W.2d 425 (Mo.App. 1951).  Generally, “knowledge” is easily established where the condition is structural, such as a car-stop, which has existed for an extended period of time.  Id. Thus, the Raymore personal injury plaintiff will need to show that there was a premises defect at Raymore Restaurant’s that created an unreasonable risk of harm to Ms. Harrison, thereby causing her accident personal injury.

Missouri law states that the presence of a car-stop, alone, is not a premises defect.  Hopkins v. Sefron Fibre Can Company, 390 S.W.2d 907, 912 (Mo.App. 1965).  However, the placement of the car-stop can be.  Alexander v. National Supermarkets, Inc., 616 S.W.2d 873, 875 (Mo.App. 1981).  Whether the placement of the car-stop amounts to a defect depends upon the circumstances of the case.  Id. These circumstances can include but are not limited to whether the car-stop was separate and isolated from the other car-stops, whether it was located near an entrance to the building, why the car-stop was placed where it was, where it was placed in relation to the parked cars, and whether it was concealed from view.  Id. In any event, if the alleged defect (the car-stop) is so open and obvious that the invitee should reasonably be expected to discover it and realize the danger, it is in “plain view” and is not a premises defect unless the land owner should anticipate harm despite the alleged defect’s obviousness.  Harris v. Niehaus, 857 S.W.2d 222 (Mo. banc 1993); Seymour v. Lakewood Hills Ass’n, 927 S.W.2d 405, 410 (Mo.App. 1996).

Our Cass County personal injury lawyers revealed in the depositions of Ms. Harrison and Mr. Cass strong evidence that the car-stop should not be considered a premises defect.  In her deposition, Ms. Harrison indicated several times that she saw the car-stop before she tripped over it.  The car-stop was not an isolated object in the parking lot.  It was placed along side other car-stops.  (Exhibit “A”).  Also, it was placed at the top of the yellow striped handicapped area as part of a row of car-stops.  Arguably, pedestrians would expect a car-stop to be there.  In addition, it was not concealed from view by another object.  There was no reason for Raymore Restaurant’s to anticipate that a customer would fall over the car-stop because no other falls had occurred.  These factors indicate that the car-stop was in “plain view” and not a premises defect.

In any event, Ms. Harrison’s failure to pay attention where she was walking should reduce any verdict she could receive through the application of comparative fault.  In Cox v. J.C. Penney Co., Inc., 741 S.W.2d 28 (Mo. banc 1987), the Missouri Supreme Court considered a case where a business invitee tripped over a luggage strap in a department store. Id. The Court stated that the personal injury plaintiff’s failure to pay attention where she was walking and failure to otherwise use ordinary care went to the issue of comparative fault and reduced the judgment she received.  Id. Here, too, we intend to show that the Raymore personal injury plaintiff failed to pay attention and use ordinary care.  Ms. Harrison stated that she knew there were car-stops in the parking lot.  She had been to the restaurant many times and was familiar with the layout of Raymore Restaurant’s well-lit parking lot.  She seems to have normal vision and was not carrying anything that would have obstructed her view.  There has been no indication that the car-stop was covered or hidden.  Thus, our Cass County personal injury lawyers will argue her comparative negligence in failing to use ordinary care should reduce any judgment she may receive.

The deposition of Floyd Cass casts further doubt upon the liability of Raymore Restaurant.  Mr. Cass came across as having a better memory of the events of that day than Ms. Harrison.  He stated that Ms. Harrison did not fall near the yellow striped handicapped area as she claims. (Exhibit “A”).  Rather, he states she fell close to the restaurant’s entrance.  If the Cass County personal injury jury believes his testimony, the plaintiff’s Raymore personal injury lawyers’ theory that the placement of the car-stop at the top of the yellow striped handicapped area was a premises defect would not apply.  If the Cass County jury believes Ms. Harrison’s testimony that she fell in the yellow striped handicapped area, the Raymore personal injury plaintiff will still need to show that the car-stop was a dangerous condition on the property.

Our Lee’s Summit personal injury attorneys intend to take the deposition of John Floyd, the plaintiff’s son, in the near future to get his version of where the personal injury accident occurred.  His testimony will also provide evidence of how Ms. Harrison’s personal injury has affected her.  A summary and an analysis of his testimony will be provided to your offices shortly thereafter.  We also intend to get the medical records from the plaintiff’s eye doctors.  These records should tell us whether the plaintiff had any eye conditions that would have hampered her ability to see the car-stop at Raymore Restaurant.

As always, our Raymore accident injury law firm will keep you apprised of any significant developments as they occur.  If you have any questions or if I can help in any manner, please feel free to contact me.

Very truly yours,

Matthew J. Hamilton

Raymore Personal Injury Lawyer

MJH/ # 7094564

Raymore Attorney Matt Hamilton speaks before Cass County Landlord’s Association

Posted on by Matt Hamilton

Raymore, MO:   Raymore attorney Matthew Hamilton, whose  law office is in Pleasant Hill, MO, spoke before the Cass County Landlord’s Association about legal issues facing property owners in the county.  A number of landlords from all across Cass County were in attendance.

Speaking at the offices of J.D. Reece in Raymore, MO, Hamilton discussed ways in which landlords can reduce Lees Summit criminal activity, Jackson County accident injuries, and lawsuits on their Cass County, Missouri properties.  Hamilton stressed the need for adequate security in the form of items such as proper lighting and the monitoring of trespassers on apartment grounds.  He went on to discuss ways for landlords to protect themselves against property damage to their facilities.  During a subsequent question and answer session, Hamilton answered questions regarding the enforcement of bad checks written by Cass County, Missouri tenants.

“Disputes between landlords and tenants can be some of the most contentious fights we see in the court system.  Cass County benefits anytime that we can make rented property safer and prevent these types of disputes from arising in the first place,” said Hamilton.

The association is one of many across the state in which members meet to address common issues facing small property owners.  According to census figures, just over twenty percent of Cass County residents live in Non Owner-Occupied Units.  The national average is thirty-six percent.