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.

Use Caution When Buying Fireworks

fireworks1If you’re thinking about buying fireworks to add some excitement to your 4th of July celebration in Ohio, think again. First and foremost, aside from sparklers and other small novelty items, fireworks are illegal for personal use in Ohio. While you can buy other types of fireworks in Ohio, all fireworks must be transported outside the state within 48 hours of purchase. Despite these laws, many Ohioans choose to set off a wide variety of fireworks, with some “backyard” displays rivalling city events.

Liability

So, what happens if your illegal fireworks display injures someone? If you break a law and your actions result in the injury of another, you may be found liable for damages under a legal doctrine known as “negligence per se.” This means if a jury finds that you violated a law and the violation was a substantial factor in causing the injury to the plaintiff, the judge will instruct the jury that they must presume you were negligent – giving a huge advantage to the injured plaintiff.

Check out our YouTube video for more information about negligence per se.

How frequently do accidents happen? The Consumer Products Safety Commission estimates that there were eight deaths and 11,400 people went to emergency rooms for treatment of fireworks-related injuries in 2013 alone. Most of the accidents occurred within 30 days of Independence Day.

Beware of Illegal Explosives

All consumer fireworks are regulated by the Consumer Product Safety Commission (CPSC) and may carry a charge of no more than 50 milligrams of powder. Homemade fireworks and other illegal explosives carry special risks due to their unknown composition and unpredictability. These devices do not meet safety standards, may carry more than 20 times the permissible powder load, and often have a coating of dangerous explosive dust. Friction, heat, or even being bumped can cause these devices to detonate.

Homemade explosives can pose a particular risk for injury because the people making them often lack knowledge and experience in manufacturing fireworks. Most law enforcement agencies consider devices such as M-80s, M-100s, quarter sticks, cherry bombs, silver salutes, etc., to be illegal because they exceed CPSC limits for consumer fireworks, in addition to being banned by many States.

Remember, all fireworks must carry a warning label describing necessary safety precautions and instructions for safe use. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) warns consumers not to use illegal fireworks. Some indicators that a device may be an illegal explosive are:

  • It is sold on the street or out of the back of someone’s vehicle.
  • It resembles a roll of coins with a fuse.
  • It consists of a cardboard tube or oddly shaped item wrapped in brown paper and filled with an explosive material.
  • It is red, silver, or brown in color
  • It may be 1 to 6 inches long and up to an inch or more in diameter.

The ATF asks that the public report the manufacture or sale of illegal fireworks or explosive devices to local law enforcement or by calling the toll-free ATF hotline at 1-888-ATF-BOMB (1-888-283-2662).

All of us at Elk & Elk wish you and your family a very happy and safe 4th of July weekend.

Texas Family Awarded $3M in Fracking Lawsuit

feb_article3In a landmark fracking case, a Texas family has won $2.95 million from an oil company for years of sickness caused by polluted air from nearby drilling.

According to court documents, Robert and Lisa Parr filed a lawsuit against Aruba Petroleum Inc. in 2011. They claimed fracking operations near their property had released toxins into the air that harmed their health, killed livestock and forced them to leave their home.

CNN reports, “As a result of poor management and lack of emission controls, Aruba Petroleum created a ‘private nuisance’ to the Parr family by producing harmful air pollution and exposing them to harmful emissions of volatile organic compounds, toxic air pollutants and diesel exhaust, the lawsuit said.”

Members of the Parr family suffered from a host of symptoms, including migraine headaches, dizziness, nausea, nosebleeds, skin rashes and open sores. Blood tests revealed more than 20 toxic chemicals in Lisa’s bloodstream.

What is fracking?

Hydraulic fracturing, or fracking, is the process of drilling through dense layers of shale and then injecting a slurry of water, sand and chemicals to release natural gas. Fracking is big business in the United States. According to fractracker.org, there are more than 1.1 million active oil and gas wells nationwide. Here in Ohio, there are upwards of 39,000 active wells, primarily in the eastern part of the state.

More than 15 million Americans live within one mile of a fracked well

In a 2013 article, The Wall Street Journal revealed that at least 15.3 million Americans have a natural gas well within one mile of their home—that’s more than the population of New York.

While some laud the fracking industry as a boon for the economy, others are far more skeptical. Numerous concerns abound, ranging from environmental issues, such as water and air pollution, to cancer and other serious health problems.

The WSJ reports, “The federal government is weighing steps to make drilling less intrusive and safer. There is a rule set to go into effect in 2015 to require capturing emissions from fracking sites. The EPA is also studying the potential effect of fracking on drinking water and will release findings and recommendations in 2014.”

Sadly, these provisions will be enacted too late for some Americans, and safety advocacy groups point out that EPA fines are merely a “slap on the wrist” for multi-billion-dollar oil companies. When people are hurt by the negligent acts of large corporations, it takes an experienced civil litigator to navigate the maze of governmental regulations, deal with insurance companies, and obtain just compensation for the victims.

 

Sources:

Texas family plagued with ailments gets $3M in 1st-of-its-kind fracking judgment” by Jason Morris, CNN, April 26, 2014.

“Energy Boom Puts Wells in America’s Backyards” by Russell Gold and Tom McGinty, The Wall Street Journal, October 25, 2013.

Calculating Future Medical Costs

Ohio attorney Bill Price talks about what to do if your child has been severely injured in an accident and now needs long-term care.

Dealing with the aftermath of an accident can be very challenging, confusing and emotional.  Doctor bills, insurance claims, and other issues won’t wait for injuries to heal. What’s even more troubling is when those injuries are significant and/or permanent. You may be struggling to cope with all the ways this harm will affect you and your family for the rest of your lives.

For some accident victims, there may come a time when your doctor cannot offer any more medical treatment because the injury is permanent. However, you may still help dealing with your injury and require assistance maintaining your health.

Therefore, you may seek restitution for not only current medical bills, hospital stays and prescription drugs, but also the future costs as well. If you’re bringing a lawsuit against the negligent party, you might wonder how we calculate all those costs? Well, the answer is with some help from experts.

With a medical expert, we can demonstrate your need for lifelong medical care. This can include physical therapy, doctor visits, prescription drugs and any other medical costs. But we all know prices change. The amount you paid for medication 10 years is not the same as today and will definitely be different 10 years from now. That’s where an economist becomes important. He or she can estimate what all of your future associated costs will be throughout the years. When dealing with an insurance company, we need to prove economic damages in order to settle or go to trial. By utilizing experts, we work to bring you and your family one step closer to recovery.

To learn more about personal injury law, I encourage you to watch the video above and to explore our educational website at www.elkandelk.com. If you have legal questions, please call us at 1-800-ELK-OHIO. I welcome your call.

William J. Price

New Regulations for Helicopter Air Ambulances

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Photo: Jared Davidson

After an accident, many victims rely on emergency services to deliver them safely to a hospital in order to receive life-saving medical treatment. While emergency medical transportation usually involves an ambulance, sometimes circumstances necessitate the use of a helicopter. Unfortunately, medevac crashes involving helicopters have been on the rise in recent years.

To combat this problem, the FAA recently issued new regulations that require helicopter operators, including air ambulances, to comply with stricter flight rules and procedures, including:

  • Additional training for pilots, with a mandatory instrument rating
  • Improved communications
  • Additional on-board safety equipment
  • Safety briefings or training for medical personnel
  • Implement pre-flight risk-analysis programs 

The rule, which goes into effect on April 20, 2014, represents the most significant improvements to helicopter safety in decades and responds to both government and industry concerns over helicopter operations.

The FAA said in a statement that it had examined helicopter air ambulance accidents from 1991 through 2010 and determined 62 accidents that claimed 125 lives could have been mitigated by the new rule. In 2008, five accidents claimed 21 lives, the deadliest year on record. From 2011 through 2013, there were seven air ambulance accidents resulting in 19 fatalities.

“This is a landmark rule for helicopter safety,” said Transportation Secretary Anthony Foxx. “These improvements will better prepare pilots and better equip helicopters, ensuring a higher level of safety for passengers and crew.”

Like all aviation accidents, helicopter crashes can be caused by negligence, including pilot error, negligent maintenance, improper inspection techniques and defective equipment. Other problems can occur if there is not a complete crew of medical staff onboard or they lack proper training.

 

Source:

“Regulators Call for Tougher Helicopter Safety Rules” by Andy Pasztor and Doug Cameron, The Wall Street Journal, February 20, 2014.

Limits on Your Personal Injury Compensation

Attorney Gary Cowan explains caps on pain and suffering in Ohio lawsuits.

 

After being injured in a personal injury accident, you have only one chance to become made whole again and this is to bring a lawsuit against the person who caused you harm.

The amount you may be awarded, either by a jury or through a settlement, is primarily based on the types of injuries you sustained in the accident. While some accidents leave only a few scratches and bruises, other times you may suffer much more severe injuries which can be permanent.

Normally, the more severe the injury is and the greater impact it has on your life, the more compensation is awarded. Our main goal is to seek enough recovery money for you to take care of your health and the consequences of your injuries — not just currently but in the future. You may also be able to receive another type of compensation called ‘pain and suffering.’ Also known non-economic damages, this type of claim is based on intangible injuries.

In Ohio, there are caps or limits on non-economic damages. This can range between $250,000 and $350,000 per each accident lawsuit. However, it is possible to go beyond these limits and receive more for your accident case. In cases regarding physical deformities and other permanent injuries your attorney may be able to break through the caps of pain and suffering limits. Not all injuries will lead to damages for pain and suffering. In general, damages for pain and suffering can be awarded for past, present, and future physical distress in a personal injury case.

To learn more about personal injury law, I encourage you to watch the video above and to explore our educational website at http://www.elkandelk.com. If you have legal questions, please call us at 1-800-ELK-OHIO. I welcome your call.

Gary Cowan joined Elk & Elk Co., Ltd. in 2000 as a trial attorney and litigator. He has been involved in personal injury and medical malpractice litigation since 1988, and has been lead trial counsel in over 80 jury trials.

First Spine Surgeon Patient Awarded $1M, More Cases Pending

Medical MalpracticeA Hamilton County jury has awarded $1.04 million to Crystal Pierce, the patient of Dr. Atiq Durrani in the well-publicized medical malpractice trial of the Cincinnati spine surgeon. Hundreds of Durrani’s patients have also filed similar malpractice claims.

The jury awarded the plaintiff $500,000 for pain and suffering, $40,000 for lost wages, and $500,000 in punitive damages. However, due to Ohio’s damage cap laws, the amount will be reduced to a maximum of $790,000 – minus attorney fees and costs.

Local news outlet WCPO reports:

The eight-member jury found for Pierce in three of the four claims in her suit:

  • Negligence, based on accusations that Durrani violated the standard of care during her surgery on Jan. 30, 2009.
  • Lack of informed consent. Deters said Durrani operated beyond Pierce’s consent and that she never agreed to his use of BMP-2, a bone-growth hormone. The North American Spine Society had warned spine doctors not to use it in surgeries like Pierce’s, a witness for Pierce testified. Since then, some studies suggested it could lead to increased risk of cancer.
  • Fraudulent misrepresentation, based on the claim that she could be paralyzed if she didn’t have the surgery.

The jury did not accept the fourth claim of battery. Deters argued that Durrani’s surgery amounted to intentional, unconsented contact.

According to Dr. Keith Wilkey, who testified at the trial, Durrani used a commercial bone growth protein (INFUSE) despite warnings against its use from the North American Spine Society. He also told jurors that Durrani had misread or disregarded X-rays, chose a more painful and complicated procedure than other U.S. surgeons would have performed, and worsened Pierce’s condition by misplacing screws and plates in her spine.

Dr. Durrani, who is still facing hundreds of additional civil suits and a 36-count federal fraud indictment, has fled the country and is reported to be in Pakistan. However, the jury could not consider that fact in their deliberations. By order of the judge, they were only told that Durrani had chosen not to testify.

 

Source:

“First plaintiff wins malpractice case against Mason spine doctor Atiq Durrani” by Greg Noble, WCPO, January 14, 2014.

Health Club Injuries due to Negligence

gymSometimes people get hurt when working out. In many cases, gym injuries are the result of improper technique, not stretching, over exertion, or just a simple accident. However, in certain cases, a serious injury can arise due to the negligence of others.

Premises Liability

Gym, health club, fitness center, no matter what you call it, all such businesses have a duty to make their premises safe for invitees. The owner is responsible for mopping up spills, repairing uneven floors, and removing obstacles that could cause customers to take a tumble. This includes locker rooms and pool decks, which must be reasonably maintained.

Incompetent Staff

If you suffer an injury as a result of the negligence trainer or other employee, the owner of the establishment may be liable for negligent hiring, supervision and/or training of a personal trainer or other health club personnel.

A personal trainer who lacks the proper credentials or fails to follow a reasonable standard of care may also be negligent. Cases can involve baseline evaluations, determining physical capabilities, designing a fitness regimen and “spotting” clients while lifting weights.

Faulty Equipment

Defective weight machines, treadmills, ellipticals, bikes or other equipment can create dangerous conditions. Injuries due to a malfunctioning machine may have a number of causes. Injuries caused by equipment that was poorly designed or incorrectly assembled at the factory may be the fault of the manufacturer.

If the machine was not properly cared for, the gym may be at fault for failing to maintain their equipment. However, if you did not follow instructions or used the machine in a manner for which it was not designed, you would normally be responsible for your own injury.

Remember, when beginning any exercise regimen, it is important to talk to your doctor, especially if you have health concerns.

 

Student Hit While Exiting School Bus

Last week was National School Bus Safety week. The idea began in 1964 and has grown to a national event. Schools and other organizations across the country mark the occasion by distributing safety materials and urging motorists to drive carefully.

Unfortunately, not everyone headed the warnings. On Wednesday, a vehicle ignored school bus warning lights and struck a 15-year-old Perry School District student.

News reports indicate that the high school student had exited the bus and started walking across the street when a silver Chrysler LHS drove around the bus and collided with the boy. He was knocked into the windshield and thrown to the side of the road. Emergency crews initially transported the teen to Madison Medical Center, but his injuries required him to be flown to MetroHealth Medical Center.

As of the time of this writing, neither the name of the victim nor the identity of the driver have been released, pending charges.

School Bus Safety

Always stop for a school bus.

Ohio Revised Code 4511.75 requires all motorists to stop at least 10 feet from a school bus anytime it has stopped to load or unload. When stopped, school buses in Ohio display red flashing lights as well as a stop sign on the side of the bus. Motorists may not resume motion until the red lights stop flashing, the extended stop sign is withdrawn, and the bus begins moving. If driving on a 4-lane roadway, the driver need not stop for a school bus approaching from the opposite direction.

Elk & Elk asks that you remind your child to follow these rules while getting off and on the bus:

  • Always remain in direct eyesight of the bus driver
  • Get to the bus stop in plenty of time
  • Take 10 giant steps back from the curb while waiting for the bus and 10 steps when exiting the bus
  • Never try to get anything left on the bus after exiting
  • Never reach underneath the bus
  • Always follow the driver’s directions for how to cross the street
  • Be alert to traffic and look both ways
  • Always cross in front of the bus, but only when the bus driver signals it is safe to do so

Bus drivers in Ohio are required to file reports with law enforcement when motorists pass them illegally. In some communities, cameras are being used to facilitate this reporting.

 

Source:

Vehicle hits 15-year-old Perry student crossing at bus stop” The News-Herald, October 25, 2013

Cell Phone Distractions Cause Countless Accidents

As a driver, you must be fully aware at all times in order to avoid accidents and stay out of harm’s way. Distracted driving can cause an accident anywhere — whether you are cruising on the highway or just driving around town.

Drivers can be distracted in a myriad of ways, such as fiddling with the radio, reading a map, eating, grooming and of course, texting on a cell phone. Cell phones have become an increasingly common distraction; with some estimates as high as a thousand deaths per year from cell phone related car accidents.

It is every driver’s responsibility to take steps to ensure the safety of not only themselves, but also passing motorists and pedestrians. Most accidents occur because of someone’s negligence or from a momentary lapse in judgment. In 2011 alone, over 3000 Americans were killed in distracted driving crashes and cell phone usage is a huge part of this issue.

There are three main types of distractions:

  1. Manual – taking your hands off of the wheel
  2. Visual – taking your eyes off the road
  3. Cognitive – taking your mind off driving

All distractions endanger driver, passenger, and bystander safety, but because text messaging requires visual, manual, and cognitive attention from the driver, it is by far the most dangerous distraction.

Insurance companies are paying close attention to the link between cell phone use and car accidents and many auto insurance websites warn of the dangers of distracted driving. If you are at fault for a car accident caused by cell phone use, or are ticketed for talking while driving, you’re likely to see your insurance premium rise. The best way to avoid a higher premium is to avoid an accident — and potential driver distractions — altogether.

Although Ohio has implemented laws banning texting while driving, accidents due to distracted driving still occur. In cell phone lawsuits, records from cell phone carriers help us determine whether cell phone usage caused the accident. Was the person texting or making a phone call? Was the phone engaged in some other type of activity like using the internet or its GPS function? It takes an experienced Ohio accident attorney to answer these questions and help you recover if someone else’s negligence has caused you harm.

Driving while texting or talking on a cell phone is dangerous. There is nothing that can’t wait until you’re safely pulled over. Please do not allow a cell phone to be a distraction, possibly causing you or others serious pain and harm.

To learn more about personal injury law, I encourage you to watch the video above, explore this blog and visit our educational website at elkandelk.com. If you have legal questions, please call us at 1-800-ELK-OHIO. I welcome your call.

Arthur M. Elk