Day on Torts

March 14, 2011

Pigeon Poop Expert

A plaintiff in a slip and fall case in New York was permitted to testify as an expert on pigeon droppings.

The plaintiff in Stewart v. New York City Tr. Auth. 2011 NY Slip Op 01593 (NY 1st App. Div. Mar. 3, 2011) slipped and fell on pigeon poop at a subway station. The opinion says this about pigeon poop:

There was nothing manifestly untrue or incredible about plaintiff’s testimony that he often observed pigeon droppings on the subway stairs that he used every day and that he was caused to slip because of the presence of pigeon droppings on the very same set of stairs. Indeed, the station cleaner similarly testified that he had "experience on a daily basis with pigeon [droppings] and having to clean it from these steps," and that he was taught to put sand over the pigeon droppings because they were slippery.

March 10, 2011

Anti-Tort Reform Article

by The Law Offices of John Day, P.C.

is an article by Larry Beinhart explaining how and why Corporate America seeks to limit access to our courts by pushing so-called "tort reform" legislation.

Here

A sample:

March 8, 2011

Truck Driver Has A Duty Not To Park Along Roadside

by The Law Offices of John Day, P.C.

The California Supreme Court has ruled that a truck driver may be held liable for parking his vehicle along a freeway to have a snack where regulations permitted only emergency parking.

The entire opinion has a fascinating discussion of the law of duty, but the following gives you a flavor for the balance of the opinion:

If stopping 16 feet from the traffic lanes exempts a driver from the duty of care, does the same hold for parking six feet from the lane? Six inches? If we are to create immunity for a truck driver stopping for a few minutes to have a snack, should we also do so for one who decides to sleep for hours by the roadside rather than pay for a motel room? Would the categorical exemption Ralphs seeks still apply if a tractor-trailer driver parked an inch from the traffic lanes, on the outside of a curve, leaving the rig there all night without lights? To ask these questions is to see why a categorical exemption is not appropriate. The duty of reasonable care is the same under all these circumstances; what varies with the specific facts of the case is whether the defendant has breached that duty. That question, as discussed earlier, is generally one to be decided by the jury, not the court.

March 7, 2011

Personal Injury Claims and Bankruptcy Petitions

by The Law Offices of John Day, P.C.

What happens when a personal injury plaintiff files a bankruptcy petition? What happens if that plaintiff fails to disclose in the bankruptcy petition that he has a personal injury claim that has not yet been filed? How does a bankruptcy court discharge affect the plaintiff’s rights to later file his personal injury claim?

The Tennessee Court of Appeals recently addressed these issues in the case of Reynolds v. Tognetti, No. W2010-00320-COA-R3-CV (Tenn. Ct. App. Mar.4, 2011). When the defendants learned that the now debt-discharged plaintiff was pursuing a tort claim for injuries received before he filed the bankruptcy petition, they filed a motion for summary judgment seeking dismissal of the claim on the theory of judicial estoppel.

Plaintiff responded to this motion by (1) petitioning the bankruptcy court to re-open the bankruptcy and (2) filing a motion to amend the complaint to add the bankruptcy trustee as a party plaintiff. The trustee then moved to intervene or be substituted as a party plaintiff.

March 3, 2011

Alabama Decision on Jury Selection Sends A Warning to All Trial Lawyers

by The Law Offices of John Day, P.C.

A recent opinion from the Alabama Supreme Court reminds us that many things – even obscure things – can cause a reversal of jury verdict.

In Ford Motor Co. v. Duckett, No. 1090833, (Ala. 2/11/2011) a unanimous Alabama Supreme Court reversed a multi-million dollar verdict in favor of a plaintiff because the trial judge did not properly handle the jury selection process. The products liability trial was expected to last as many as four weeks, and the trial judge asked all potential jurors who were gathered in a jury assembly room to indicate whether they could serve during a three or four week trial. Those who indicated “yes” went through traditional voir dire. The defense objected to this course of action, saying that the judge was “asking for a jury of volunteers” in violation of Alabama law and that they were entitled to a randomly selected jury.

Despite the absence of any case law directly on point, the Alabama Supreme Court held this method of selecting jurors for participation in the ultimate jury selection process was inappropriate under Alabama law. The Court noted that while no one challenged the composition of the original jury pool, the trial judge committed reversible error when he reduced the size of the pool by asking who could serve for a trial expected to last three to four weeks.

March 1, 2011

The Tennessee Jury Verdict Reporter Year in Review – 2010 Part 2

by The Law Offices of John Day, P.C.

Yesterday I shared data on auto negligence cases from Shannon Ragland’s Tennessee Jury Verdict Reporter Year in Review 2010. You can order your own copy of the publication here.

Here is some other data of interest:

There were 33 medical malpractice jury trials in the covered one-year period. The patient prevailed in 10 of those case.
There were 16 premises liability jury trials. The plaintiff prevailed in 4 of those cases.
There were 2 product liability jury trials, and the plaintiff won both.
There was one dog bite trial, and the plaintiff won it.

There is 15 verdicts of $1,000,000 or more, increasing the total number of million dollar verdicts for the last six years to 84. The two million dollar verdicts in auto wreck cases last year involved drunk drivers. One such verdict was discussed in the previous post. I have been told, but do not know with 100% certainty, that the other $1 million verdict was against a man with very few assets and only $25,000 in liability coverage.

February 28, 2011

The Tennessee Jury Verdict Reporter Year in Review – 2010

by The Law Offices of John Day, P.C.

Shannon Ragland from Louisville, KY has a company called Jury Verdict Publications. Shannon gathers jury verdict data in several states and publishes a monthly report for each state. He also publishes an annual review for each state, which includes all of the jury verdicts for the prior year and analyzes the data that he has gathered. The annual review also includes data from previous years.

Over the next few days I will be sharing some of the data in the Tennessee Jury Verdict Reporter Year in Review 2011. You can order your own copy of the book from Shannon here.

What I like about Shannon’s work is that he actually analyzes the information he gathers, unlike those that prepare the annual report on civil filings issued by the Tennessee Administrative Office of the Courts. Please note that I do not intend to criticize the AOC by comment – it gathers data from others (court clerks) and simply publishes it. Shannon gathers data and studies it. Big difference.

February 28, 2011

Why Is It That Tort Reformers Can’t Shoot Straight With the Public?

by The Law Offices of John Day, P.C.

Experienced trial lawyers – heck, people with experience in life – know that when people have a valid point to make they don’t have any reason to misrepresent facts.

So when Justin Owen of Tennessee Center for Policy Research talks about the need for tort reform, you would think he would make an effort to state facts. Real facts. Facts presented in a non-misleading way.

And you would think that to the extent that he stated a fact he would not leap or attempt to cause another to leap to a conclusion not reasonably supported by the fact.

February 23, 2011

SCOTUS Allows Lawsuits Over Seat Belts

by The Law Offices of John Day, P.C.

From Reuters:

The U.S. Supreme Court ruled that federal regulations setting vehicle safety standards do not bar lawsuits seeking damages from automakers for installing lap-only seat belts.

The unanimous ruling held that a California lawsuit against Mazda Motor Corp. over a fatal 2002 collision involving a 1993 Mazda minivan could proceed. A passenger sitting in a rear seat and wearing a lap-only seat belt was killed.

February 21, 2011

Arizona Court Holds That Medical Expense Claims Belong to Child and Parents

by The Law Offices of John Day, P.C.

The Arizona Supreme Court has reversed prior law and held that a claim for medical expenses arising out of a personal injury to a child may be asserted by the child or the parents, but not both.

The case is Estate of Madison Alexis Desela v. Prescott Unified School District, No. CV-10-0172-PR (AZ 1/18/11).

Historically, Arizona law provided that the medical expense claim belonged to the injured child’s parents, who had the obligation to assert that claim within the statute of limitations applicable to adults.