Look Before You Leap: Open and obvious hazards

What you need to know about Open and Obvious Hazards

Slip and fall injuries are common in Ohio, but if a hazard is “open and obvious,” the property owner may not be responsible for your injuries.

open and obvious, personal injury, premises liability
Property owners are generally not liable for injuries caused by open and obvious hazards. Photo Credit: Jonathan Pendleton / CC BY 2.0

Proving negligence in a slip and fall case

To better understand the open and obvious doctrine, let’s start with the basics of negligence. Generally speaking, Ohio property owners are not responsible for injuries to their guests unless they know of a dangerous condition and fail to provide an adequate warning.

To prove negligence in Ohio, an injury victim must prove the following:

Elements of Negligence Definition Example
1. The defendant owed the plaintiff a “duty of care” A legal obligation to prevent harm to visitors Store owners  must keep their store “in a reasonably safe condition” and warn customers of hidden dangers
2.They breached that duty The property owner did (or didn’t do) something they should have An employee failed to put out a caution sign after he mopped the floor
3. The breach caused the injury Their failure to maintain the property or warn you about something dangerous was the reason you got hurt You didn’t notice the danger, slipped on the wet floor and broke your arm

 

Unfortunately, in many instances, even where each element of negligence has been met and a slip and fall accident has caused serious injuries, no legal claim exists. One of the many ways a property owner may defend a premises liability claim is to use the open and obvious defense.

Open and Obvious

In Ohio, courts have repeatedly held that property owners have no duty to people entering their premises regarding dangers that are open and obvious. The basis of this legal concept is that any obviously dangerous hazard serves as its own warning (like an enormous hole in the ground.) Therefore, a property owner may reasonably expect their invitees to notice the danger and do what is needed to protect themselves. As a rule, since open-and-obvious doctrine removes the duty to warn, it acts as a complete bar to any negligence claims.

Related post: Negligence Per Se Lawsuits

Latent Dangers

In addition to owing invitees a duty of ordinary care in maintaining their property, an owner or occupier of property also has a duty to warn an invitee of dangerous hidden conditions. That means if the property owner purposely hides a dangerous condition or fails to warn invited guests of a hidden danger, the owner may be responsible for a victim’s injuries.

But I didn’t see it!

It is important to remember that the dangerous condition itself does not actually have to be seen by the plaintiff to be an open and obvious condition under the law. In a premises liability claim, generally, your conduct is usually immaterial. That means if you got hurt because you were looking at your phone and not paying attention, the property owner is not responsible for your injury. However, even if a condition was open and obvious, the property owner could still be liable if he or she created “attendant circumstances” – unusual situations that distracted you at the time of your fall.

Do I need a lawyer for my slip and fall case?

Premises liability claims can be difficult to prove. If you were hurt in a slip and fall or trip and fall accident, contact an experienced personal injury attorney immediately to review the merits of your case. An attorney can help collect and preserve evidence; negotiate with insurance companies and help recover compensation for injuries, missed work, and non-economic damages, such as pain and suffering.

 

 

The contents of this website are intended to convey general information only and not to provide legal advice or opinions. The use of the information provided in these pages should not be taken as establishing any contractual or other form of attorney-client relationship. The information presented on this website may not reflect the most current legal developments and may contain technical inaccuracies or typographical errors. No action should be taken in reliance on the information contained on this website. An attorney should be contacted for advice on specific legal issues.

Are you protected from uninsured drivers? Tips from an Ohio personal injury lawyer

by R. Craig McLaughlin

1 out of every 8 drivers on Ohio’s roads is driving without auto insurance. Are you protected if you’re involved in a crash with an uninsured driver?

The next time you’re commuting to work or are carpooling kids to soccer practice, take a look around at the other cars on the roadway. Pick out eight vehicles. According to the Ohio Department of Public Safety (ODPS), one or more of those eight drivers is driving without insurance. When you consider 50,000 Ohio crashes a year involve an uninsured driver and 75 percent of those crashes are caused by the uninsured driver, you better make sure you have taken steps to protect yourself and your family.

Uninsured Motorist Coverage - car accident lawyer
Photo Credit: Caleb George / CC BY 2.0

What is uninsured motorist coverage?

Ohio law requires drivers to maintain proof of financial responsibility in the minimum amount of $25,000 for bodily injury to or death of one individual in any one accident; $50,000 for bodily injury to or death of two or more individuals in any one accident; and $25,000 for injury to the property of others in any one accident. Most people comply with this law by purchasing an insurance policy, but statistics show there is a large segment of Ohio drivers who are driving without insurance.

If you are involved in a car crash caused by an Ohio uninsured driver, you could be left holding the bag. Unless that driver is a celebrity, professional athlete or recently won the lottery (all of these are highly unlikely or they would have had the money to purchase liability auto insurance in the first place!), then you won’t have any source of compensation for your medical bills, lost wages, out of pocket expenses, and pain and suffering.

So what can and should you do? You need to make sure your insurance policy provides uninsured motorist coverage. Uninsured motorist coverage is there to compensate you for your damages and losses in the event you are involved in a collision that is caused by an uninsured driver.

This is an optional coverage in Ohio, but one you should definitely purchase to protect yourself and your family. Check the declarations page on your auto insurance policy to see if you have it. The declarations page is a document that comes with your policy and lists the types of coverage you have; the amount of coverage and the amount of premium you pay for the coverage. Do not be tempted to save a few dollars on your premiums by declining uninsured motorist. And in my opinion, if your insurance agent fails to offer it or suggests that you decline this type of coverage, then I suggest you find a new insurance agent immediately.

The tale of two similar clients who had very different outcomes because of the purchase of uninsured motorist coverage

I recently had two clients who both suffered very serious injuries in a car crash caused by an uninsured driver. “Bill” was on his way to work when the driver of another car fell asleep, crossed left of center and struck Bill’s truck in a head-on collision. Bill’s truck was demolished and he suffered a fractured hip, shattered pelvis and other serious injuries. He was taken by ambulance to the hospital where he needed surgery. He then spent nearly a month at the hospital and a rehabilitation facility before he was able to go home. Bill’s medical expenses exceeded $100,000 and he was unable to work at his job as a construction foreman for over six months. His wife was a stay at home mom who cared for their two young daughters. Like many Ohio families, they lived paycheck to paycheck and depended on Bill’s steady income.

In an effort to save a few dollars each month on his car insurance, Bill made the mistake of not purchasing uninsured motorist coverage that would have given him some protection in this tragedy. Fortunately, Bill had health insurance that paid for most of his medical bills, but he was still responsible for thousands of dollars in medical bills in the form of deductibles, co-pays, and other out of pocket expenses. Since the driver had neither liability auto insurance nor any assets to pursue and Bill did not purchase uninsured motorist coverage, he was on the hook for these unpaid medical bills; was not going to be compensated for his significant lost wages and did not receive money for the dramatic impact this incident had on him and his family. I had to deliver this bad news to Bill that I was not able to recover anything for him or his family. Bill and his family avoided filing for bankruptcy, but this tragedy took its toll on him and his family financially, physically and emotionally.

Contrast Bill’s story with what happened to my client “Karen.” She was on her way to visit her mother when an uninsured motorist ran a stop sign and caused a T-bone collision that sent Karen’s car spinning off the side of the road. Karen suffered a herniated disk in her neck, a fractured arm and other serious injuries. Like Bill, Karen had to undergo surgery to repair the damage, had an extended hospital stay and missed significant time from her job as an administrative assistant. Fortunately, Karen had purchased uninsured motorist coverage in the amount of $250,000. Therefore, I was able to obtain this money for Karen, which paid for her medical bills, reimbursed her for her lost wages and compensated her for the disruption this event caused in her life.

Purchase Uninsured Motorist Coverage To Protect You and Your Family

So what is the take away from this article? Check the declarations page of your auto insurance policy to make sure you have uninsured motorist coverage. With 1 out of every 8 Ohio drivers on the road not having liability auto insurance, you are playing “Russian Roulette” with your physical, emotional and financial future if you do not have uninsured motorist coverage. I encourage everyone who asks me to purchase at least $250,000 or more of both liability and uninsured motorist coverage. I also suggest you ask your insurance agent about and consider purchasing an umbrella or excess insurance policy of $1 million or more to further protect yourself. An umbrella insurance policy is insurance that provides additional coverage above and beyond the underlying auto insurance policy. However, make sure you specifically request an umbrella that provides additional insurance coverage for both liability and uninsured motorist coverage because some insurance companies only issue umbrella policies for liability insurance coverage and not uninsured motorist coverage.

 

Craig McLaughlin represents people who have been seriously injured or killed as a result of motor vehicle crashes, defective products, nursing home neglect, and other medical negligence. He has been recognized by Super Lawyers, Martindale-Hubbell, and AVVO and is a life member of the Multi-Million Dollar Advocates Forum and Million Dollar Advocates Forum.

Essure Birth Control Under Fire

iStock_000013959692XSmallUPDATE (2/15/16) Elk & Elk is now actively pursuing legal action for victims of Essure. Call 1-800-ELK-OHIO for a free consultation.

Facing a wave of public criticism, Bayer has agreed to add warnings to the patient information booklet for Essure – a permanent birth control device consisting of coils inserted into a woman’s Fallopian tubes. The new language includes warnings of pelvic pain and device migration.

On the market since 2002, the device has been implanted in nearly 1 million women worldwide. Promoted by manufacturers as cheaper and less invasive than traditional tubal ligation, the Essure system has become a source of irritation for both Bayer and patients, with over 3,000 women speaking out about adverse reactions to the implants on social media sites.

According to news reports, a majority of the women are experiencing side effects from an allergy to nickel, which is a component of the coils. Originally, doctors were advised to test women for nickel allergies before implanting the Essure coils, but the manufacturer asked the FDA to remove that requirement a few years ago.

Other women complain of extreme bloating, skin rashes and headaches. Photos posted include broken coils that had been removed and X-rays of coils that perforated the fallopian tubes.

Reporting is crucial

Despite the growing anecdotal evidence regarding alleged risks associated with Essure, the FDA can only respond to official reports of serious adverse events. Even if you have spoken to your physician, it does not guarantee a report has been filed. If you wish to file a report, you can complete the paperwork yourself or ask for assistance from a friend, family member, or healthcare professional.

Adverse Events

According to the FDA, an adverse event is “any undesirable experience associated with the use of a medical product in a patient.” If an event is serious, it should be reported to the FDA. Examples of serious adverse events include, but are not limited to, death, life-threatening effects, hospitalization, disability or permanent damage, birth defects, and other important medical events.

For more information about reporting adverse events or to file a report online, visit the FDA’s MedWatch website.

You can also download instructions with the Consumer-Friendly Voluntary Reporting Form (PDF – 1.2MB).

 

NOTE: This blog was originally posted in November of 2013 and has been updated to include new information.

 

Source:

“Bayer changes Essure patient booklet to include health warnings on its birth control” by Lauren Gilger and Maria Tomasch, ABC, November 12, 2013.

Sebring Lead Crisis: 11 More homes test positive, village cited

The Ohio Environmental Protection Agency has announced the latest water samples taken by the village of Sebring revealed elevated lead levels in the tap water of 11 homeowners who asked for their water to be tested. The state agency said that 34 of 698 samples taken in Sebring since January 21, 2016 have showed lead levels above the federal allowable level of 15 parts per billion.

EPA Cites Sebring for Failing to Warn Residents

On February 9, the Ohio EPA issued yet another Notice of Violation to the village for failure to communicate recent test results and guidance to homeowners and failing to submit its required weekly report on water chemistry.

“When EPA staff followed up this weekend to conduct cautionary testing on a few homes that tested above the federal allowable level, it became evident that the village had not notified these residents of their recent test results as quickly and thoroughly as they should have,” Ohio EPA Director Craig Butler said in a press release. “I expect the village to keep the public in mind and provide prompt information to its residents.”

Earlier this year, the Ohio EPA barred James V. Bates, the operator of the Sebring water treatment plant, from operating any water treatment system in Ohio and initiated steps to revoke his license. Amid accusations of negligence, the agency opened a formal investigation of Bates to determine if he endangered public health by falsifying reports. Bates has publically denied the allegations.

Lead: Flint and beyond

In the wake of widespread media coverage of Flint’s disastrous response to lead-tainted water, lead has garnered national attention. On February 9, a New York Times article discussed the pervasiveness of elevated lead levels in the tap water of communities across the country – highlighting the village of Sebring:

In Sebring, Ohio, routine laboratory tests last August found unsafe levels of lead in the town’s drinking water after workers stopped adding a chemical to keep lead water pipes from corroding. Five months passed before the city told pregnant women and children not to drink the water, and shut down taps and fountains in schools.

Due to corroding pipes, lead began to leach into Sebring tap water. The Department of Health offered free blood screening and confirmed that six people, including five children, had elevated lead levels. Although no safe blood lead level in children has been identified, according to the CDC, experts now use “a reference level of 5 micrograms per deciliter (μg/dL) to identify children with blood lead levels that are much higher than most children’s levels.”

EPA Warning: Lead is stored in the bones

Although most homes are now testing within allowable levels, for some Sebring residents, the damage has already been done. In a letter to Sebring residents, the state EPA offers this chilling warning:

Lead can cause serious health problems if too much enters your body from drinking water or other sources. It can cause damage to the brain and kidneys, and can interfere with the production of red blood cells that carry oxygen to all parts of your body. The greatest risk of lead exposure is to infants, young children, and pregnant women. Scientists have linked the effects of lead on the brain with lowered IQ in children. Adults with kidney problems and high blood pressure can be affected by low levels of lead more than healthy adults. Lead is stored in the bones, and it can be released later in life. During pregnancy, the child receives lead from the mother’s bones, which may affect brain development.

How long does lead stay in the body?

Lead can be absorbed by different parts of the body, where it remains for varying times:

  • 35 days in blood
  • 40 days in soft tissues
  • 3 to 4 years in trabecular bone (Also known as cancellous or spongy bone, trabecular bone is found at the ends of long bones, as well as in the pelvic bones, ribs, skull and the vertebrae in the spinal column.)
  • 16 to 20 years in cortical bone (Cortical bone forms the outer shell of most bones and makes up about 80 percent of your skeletal mass. It is much denser than trabecular bone, harder, stronger and stiffer.)

Lead affects the brain and nervous system, reproductive capabilities, the kidneys, the digestive system and the ability to make blood.

Residents exposed to lead who are concerned about the health of their family and protecting their legal rights should contact an experienced Lead Poisoning Attorney for a case evaluation.

Massive IVC Filter Study Underway

The Surgeon General estimates about one half million Americans are affected by blood clots annually and between 100,000 and 180,000 people die of pulmonary embolism (PE), a blood clot that travels to the lungs. To combat this problem, doctors implant hundreds of thousands of Inferior Vena Cava (IVC) filters inside patients each year to stop blood clots before they reach the lungs. Retrievable IVC filters have been reported to cause serious injuries if left in the body too long, however some physicians fail to remove the filters once the threat of pulmonary embolism has passed.

PRESERVE Study Investigating IVC Filter Safety

IVC filters have been linked to catastrophic injury and death.In August of 2010, the FDA issued a medical alert, warning that retrievable IVC filters can move or break, causing serious injuries, prompting researchers to begin investigating the devices. In 2014, the FDA issued an updated safety communication and in 2016, a study entitled, Predicting the Safety and Effectiveness of Inferior Vena Cava Filters (PRESERVE) began enrollment. The IVC Filter Study Group Foundation, sponsored jointly by the Society for Vascular Surgery (SVS) and the Society of Interventional Radiology (SIR), oversees the project. Over the course of the five-year study, 2,100 patients are expected to participate through 60 different medical sites around the U.S. 

“Our foremost commitment is to patient safety, and this study will help determine how well filters prevent pulmonary embolism and how they function over the course of their implantation,” said Matthew S. Johnson, Fellow of the Society of Interventional Radiology and professor of radiology and surgery at Indiana University School of Medicine.

According to the PRESERVE website, the study is unusual because, “More typically, studies follow one or two devices. Studying filters produced by seven different manufacturers at once is an enormous undertaking. The trial will follow 300 patients per device.”

Participating Manufacturers:

  • ALN Vena Cava Filter – ALN Implants Chirurgicaux
  • Option™ Elite Retrievable Vena Cava Filter – Argon Medical Devices, Inc. (designed and manufactured by Rex Medical)
  • VenaTech® LP Vena Cava Filter – B. Braun Interventional Systems Inc.
  • Cook Günther Tulip Vena Cava Filter – Cook Incorporated
  • DENALI® Vena Cava Filter System – CR Bard Peripheral Vascular, Inc.
  • Cordis OptEase® Retrievable Vena Cava Filter – Cordis Corporation
  • Cordis TrapEase® Vena Cava Filter – Cordis Corporation
  • Crux® Vena Cava Filter System – Volcano Corporation

“The treatment of deep vein thrombosis in trauma patients has challenged physicians to know the best way to take care of those patients,” said co-principal investigator Dr. David Gillespie, chief of vascular and endovascular surgery at Southcoast Health System, Fall River, Mass. “There are a lot of devices from different manufacturers to choose from. Physicians have been using the retrievable filters with the idea they will retrieve them, but for many reasons they often don’t.

IVC filter lawsuits  

Patients from across the country who were harmed by IVC filters have begun to file lawsuits against device manufacturers, seeking compensation for their injuries. Sadly, some family members of IVC filter patients filed a wrongful death claim as a result of the dangerous device.