Washington, D.C. Personal Injury Blog

Monday, March 9, 2015

When Is My Hot Beverage Too Hot?

A lawsuit over an excessively hot beverage made headlines two decades ago. A 79-year-old woman spilled a cup of McDonald's coffee in her lap and suffered third degree burns. A jury awarded her millions in damages; since then, almost every major chain that serves coffee has been a defendant in a similar suit.

In the McDonald's case, the coffee was brewed at 195 to 200 degrees Fahrenheit and then maintained at 180 to 190 degrees. This was consistent with the range recommended by the National Council of Chain Restaurants, but hotter than the temperatures some burn experts considered safe. The plaintiffs' attorneys argued that the high temperature was "unreasonably dangerous" and "inherently defective."

McDonald's currently serves coffee at 176 to 194 degrees. For approximately a decade, Starbucks has been selling coffee at 175 to 185 degrees. According to the Specialty Coffee Association of America, the standard serving temperature is 160 to 185 degrees. For a number of practical reasons, companies brew coffee and tea at temperatures that exceed the burn thresholds of skin, and beverage spills continue to send people to the hospital with scalding injuries.

Much of the coffee served today is as hot or hotter than the coffee that led to the 1994 McDonald's lawsuit. Instead of lowering temperatures, companies place strongly worded warnings on their coffee cups. They also have worked harder to present expert witness testimony regarding their reasons for serving the coffee at high temperatures.

In a 1998 case, Bunn-O-Matic, a manufacturer of coffeemakers, won a suit against it when the Seventh Circuit Court of Appeals unanimously held that 179 degrees was not "unreasonably dangerous.” New cases are continually filed, some involving hot chocolate and hot cider, with both the reasonableness of temperatures and the adequacy of warnings still points of contention.

If you have been burned by a hot beverage, contact an experienced personal injury attorney to advise you about whether you have a viable case.

Friday, February 27, 2015

Weight Lifting Injuries at the Gym: Who Is Liable?

Working out at a gym is usually good for your health, but not always. Perhaps you lifted more weight than you could handle. Or a piece of strength training equipment malfunctioned. Or the gym staff failed to instruct or spot you properly. Can you hold the gym owners or others liable for damages?

There have been many cases in which plaintiffs have successfully sued gyms, sports clubs, Pilates studios and other exercise facilities for their injuries. Even if the gym owners were not aware of an unsafe condition, they may be liable if proper inspection would have uncovered it. Sometimes you may also be able to bring a product liability lawsuit against companies and individuals responsible for the design, manufacture, sale or distribution of a potentially dangerous exercise machine or its components.

Equipment malfunctions are not the only basis for gym liability. You may be able to sue a gym for poor instruction or supervision. If an unqualified staff member imposed excessive demands, provided improper instruction or did not warn of potential risks, the gym itself could be liable for muscle injuries or other harm.

One hurdle to overcome is the liability waiver that most gym members must sign when they join, promising not to sue if they are injured at the gym. Some courts have upheld these waivers, but there are also occasions when lawsuits are allowed to proceed despite a signed waiver.

• Gross negligence. Short of intentional harm, "gross negligence" is a form of reckless disregard for safety. For example, if gym employees were informed repeatedly that a piece of weight lifting equipment was not working properly and continued to allow people to use it without fixing it, that might constitute gross negligence.

• Vagueness. If the language in a liability waiver is so ambiguous that no one could reasonably be expected to make sense of it, a court may disregard it. Most well-established gyms use carefully vetted forms, however.

If you are injured, you should immediately report the incident to the gym and ask for a copy of any report prepared by the gym staff. You can show that document, along with any photographs you may have of any equipment involved, to a lawyer. Contacting an experienced personal injury attorney can help you decide if you have a case to pursue.

Monday, February 23, 2015

Deciding Who to Sue: How Do I Know Who to Name as Defendants?

When you decide to start a lawsuit, it can be confusing to identify the responsible parties. Sometimes there are a lot of people involved in your injury; maybe you're suing a business, and you're not sure about its official name or who the owners are. Factual investigation is often a crucial part of starting a personal injury lawsuit.

You can select more than one defendant to sue if that person or company is somehow connected to the harm you suffered. There are "necessary" defendants -- people without whom a court will not be able to evaluate all the facts of your case or reach a conclusion. "Permissive" defendants are not essential to the case, but if your dispute with them involves the same facts and issues as your dispute with the necessary defendants, you can usually include them in your lawsuit.

You may also want to expand your lawsuit to parties not directly involved but still liable. For example, if you are suing someone who harmed you in the course of performing a job, his or her employer may be liable. If a poorly designed or malfunctioning product is involved, you may be able to sue the companies and individuals involved in the product's design, manufacture, distribution or sale.

Suing individual owners of corporations, or a corporate parent of a subsidiary, can be difficult. The corporate structure limits liability, but there are exceptions. A court will "pierce the corporate veil" when fraud is involved or when justice demands it.

Before filing your lawsuit, you need to consider all those who have a connection to your claim. An experienced personal injury attorney can help you evaluate the facts of your case and determine who to sue.

Wednesday, February 18, 2015

Injured at Daycare

Over the past few decades, the number of women entering the workforce has increased dramatically.  With both parents working outside of the home, more children are being cared for at local daycare centers starting at a young age. When parents send their children off to daycare, they expect them to be kept safe and engaged. Unfortunately, this isn’t always the case; each year, thousands of children are injured at daycare facilities across the country. If your child has been injured under the supervision of a child care provider, you may be wondering what steps you should take after the accident.

Following any injury, medical treatment should be your first and foremost concern. Be sure to keep an account of all doctors’ appointments, medications, procedures, and medical records.  You should also keep a log of complaints of pain from your child and retain the results of any tests performed. If there are visible injuries or if the unsafe condition which led to the injury can be seen, be sure to take photos.

The daycare center may have an accident report procedure that you must follow. This will generally consist of a number of forms; be sure to complete these in their entirety and follow the submission guidelines. Following the injury, you should also consult a personal injury attorney to ensure you protect and preserve your rights under the law.  A personal injury attorney can help you to establish that the childcare provider failed to exercise due care to prevent injury to your child. This will require the attorney to assess the circumstance leading up to the injury and how it could have been prevented with proper precautions. All too often, injuries are caused by a lack of supervision or a poorly maintained facility.

An experienced injury attorney can help you file a claim with the facility’s insurance carrier and review any settlement agreements to ensure you are getting the full compensation that you deserve. If the settlement offers are not adequate, your attorney may advise you to proceed with a lawsuit against the negligent care center.

Our law firm will work diligently to ensure your child receives the treatment he or she needs to make a full recovery in addition to helping you obtain the financial means you need to support your child for years to come. 

Friday, January 30, 2015

"The Baseball Rule" & Sporting Event Injuries

Each year, over 70 million tickets to Major League Baseball games are sold in cities across the country. Fans flock to these games for the live action – the opportunity to see their favorite players in the flesh, enjoy a few hot dogs and belt out the fan favorite “Take Me Out to the Ballgame” with thousands of other die-hards during the seventh inning stretch. Unfortunately, each year some of this “live action” causes injuries to spectators when a foul ball or flying bat (and occasionally, a player trying to get that heroic out) finds its way into the crowded stands. If you’ve witnessed one of these incidents or have been a victim of one, you’ve likely wondered what happens next? Will the team pay for medical care? Does the injured party have a right to sue?

Under “the baseball rule” owners must demonstrate a high degree of care for visitors to their stadiums, taking measures to protect spectators in high-risk areas (such as behind home plate) and areas where spectators can expect to be protected. Under the rule, spectators in the unprotected areas of the stadium should assume the inherent risks of the game that include balls travelling at very high speeds and pieces of equipment that might be propelled into the seating areas.

On the back of nearly every ticket for a professional sporting event, you will find a warning of these inherent risks, and a statement that explains that the team and stadium is not responsible for any injuries resulting from the game. This ticket is seen as a form of an adhesion contract which is a standardized agreement that a party is bound to once they purchase the ticket (even if the ticketholder was unaware of the terms and failed to read them prior to attendance).

In deciding civil suits pertaining to injuries at baseball games and other professional sporting events, the courts have often looked to the baseball rule in making their judgments. It is, however, important to note that not all states adhere to the rule that limits the liability of owners assuming the standard of care to visitors is met.

In one recent case Rountree v. Boise Baseball, LLC, et al., the Idaho Supreme Court balked at the century old baseball rule and ruled that a gentleman who had lost his eye when he was hit with a foul ball at a game of a minor league affiliate of the Chicago Cubs could seek damages from the baseball organization.  

If you’ve been injured at a major sporting event, you may be entitled to seek compensation for your pain and suffering. It’s important that you contact an experienced personal injury attorney who can help you understand the laws in your state, all applicable court rulings and work with you to determine the best strategy for recovery. 

Friday, January 30, 2015

Cycling Risks & Injuries

Each year, thousands of Americans take to the roads on bicycles. This mode of transportation is touted as being more cost-effective and more environmentally friendly than motor vehicles but when it comes to safety, cycling can come with a much greater risk. According to the National Highway Traffic Safety Administration, 39,000 individuals were injured in motor vehicle crashes in 2012. That same year, 724 cyclists lost their lives following accidents on the roads.

In addition to the dangers of moving vehicles, cyclists often suffer injury from being “doored”; this occurs when a driver, or passenger, of a stopped vehicle, suddenly opens the door into a cyclist’s path of travel. Injury can also occur from street defects, such as large pot holes or uneven manhole covers that can cause the cyclist to lose control. If you’ve suffered an injury while riding your bike, it’s important that you consult a personal injury attorney who has experience representing cyclists. Unlike other accidents, cycling accidents have a number of unique considerations; these include:

Insurance Coverage May Be Different for Cycling Accidents
Many attorneys have litigated car accident cases and may assume that the insurance process works the same way for cycling incidents, but this is rarely the case. In fact, many states have unique rules regarding the minimum coverage and payouts when a cyclist collides with a motor vehicle, even when the driver of the vehicle isn’t found to have been negligent.

The Laws of the Road Differ for Cyclists
In determining fault, your attorney must understand the roles and duties of all parties involved. When it comes to cycling accidents, few are intimately familiar with the laws that apply to cyclists but such knowledge is imperative for case success.

The Injuries Are Different
Injuries sustained when riding a bike are vastly different from those sustained when driving, or riding in, a car.An attorney who has represented injured cyclists will likely have a much better idea of how much money will be required for immediate and long-term treatment.

As experienced personal injury attorneys, our firm can help you through the complex litigation process following  a cycling injury and help you receive the compensation you need to recover, and get back on that bike as soon as possible.


Thursday, January 22, 2015

Just Discovering Your Injury: Do You Still Have a Claim?

A person worked with certain chemicals for many years and has just been diagnosed with cancer as a result of this exposure.  Or a person went in for surgery a long time ago and has just been alerted to the fact that someone left a surgical sponge inside them.  The point is that some injuries can remain unknown for long periods of time before they begin to have an effect or the person becomes aware of their existence.  These are called latent injuries and they are quite common.  If you have suffered a latent injury and have just discovered it, you might be worried that it is too late to make a claim.  Luckily, this is usually not the case.

A statute of limitations is the time period in which a claim can be filed.  After the statute of limitations has expired, no case can be brought as it is considered time barred.  Each type of claim has its own proscribed time limit and these vary from state to state and on the Federal level. Although most personal injury claims are subject to a statute of limitations, the law provides an exception for latent injuries

Usually, the statute of limitations begins to run at the time that the injury occurred.  This could cause a problem for someone who was unaware of his or her injury and is just discovering it now.  Some people do not become aware of their injuries until years after the statute of limitations has expired.  This is where the exception comes into play.  The law tolls or delays the start of the statute of limitations until the person knew or should have known of the injury.  This is an objective standard so the courts will consider what is reasonable under the circumstances in each case.  If reasonable, this exception allows a person who has just discovered his or her injury to make a claim even if they are well past the statute of limitations period. 

If you have been injured or suffered some type of harm and are just discovering it now, and you want to determine if you can make a claim, it is your best interest to contact a qualified personal injury attorney today.

Monday, December 22, 2014

Traumatic Brain Injury

Out of all personal injury cases, those involving traumatic brain injuries can be some of the most difficult for the victim and their families.  These injuries can have a huge impact on an individual’s daily life and often times perfectly capable people end up in need of lifelong care after their occurrence.  Brain injuries occur all the time so it is important to understand what commonly causes them and how you can obtain compensation should you or your loved one be the victim.

A traumatic brain injury is damage to the brain from an outside force.  The outside force can be either a blunt trauma or come from a jolt or an object of some kind that penetrates the skull.  This force causes the brain to malfunction in some way.  Brain injuries vary in severity and can cause a wide range of symptoms ranging from a headache to complete paralysis.  Less serious injuries might cause mild symptoms and temporary physical, cognitive and psychological effects.  More serious injuries can cause permanent impairments and even death.  The effects of a brain injury can last a lifetime.

There are many causes of traumatic brain injury stemming from every day activities as well as freak accidents.  Motor vehicle accidents are one of the leading causes of these types of injuries.  The blunt traumas, jolts and penetration wounds that sometimes occur in these situations can easily cause a brain injury.  Crimes are also a leading cause of brain injury.  Crimes involving firearms and/or physical violence can cause serious injuries to the brain if the circumstances are right.  But, most brain injuries stem from falls.  Falls at home, on another’s property and from heights can easily translate into a serious injury.

Regardless of the situation, if traumatic brain injury was caused by another individual or entities negligent, reckless or willful behavior, you might have a claim for personal injuries.  One of our experienced personal injury attorneys can evaluate your case to determine whether you should pursue a claim.  Contact us for a consultation today.

Wednesday, December 17, 2014

Does Willful Conduct Automatically Lead to Higher Recoveries?

Personal injuries usually arise from accidents.  Whether the circumstances include a motor vehicle, slip, trip and fall or a variety of other situations, it is a rare occasion that the conduct that caused the injury is intentional.  But sometimes this is the case and the law makes special provisions for these situations.

Personal injury actions can be based on a number of theories including negligence, recklessness or willful conduct.  Each theory requires the plaintiff to prove something different.  A finding of negligence requires that the plaintiff prove that the defendant failed to act as a reasonably prudent person would under similar circumstances.  Recklessness requires that it be proven that the defendant knew or should have know of the risk of harm but proceeded with the course of conduct anyway.  To find that the defendant acted willfully, there must be enough evidence to show that the defendant intended to cause harm.  While there is a fine line between negligence and recklessness, causing the two to usually be alleged in conjunction with one another, willful conduct is a different allegation completely.  A good example of willful conduct is in the case of battery, where one person makes contact with another person without consent and with the intent of causing them physical harm.

While it is not automatic or guaranteed that someone will recover more if they can prove willful, as opposed to negligent or reckless conduct, it is a distinct possibility.  First, the ordinary damages awarded in these cases might be increased due to the finding that the defendant acted intentionally.  Second, punitive damages may be awarded.  Punitive damages are those awarded with the purpose of punishing the defendant for their conduct as opposed to compensating the plaintiff for their loss.  Punitive damages are often times awarded with the purpose of making an example out of the defendant to deter others from future conduct.  These damages are rare but are awarded in certain situations, especially when the conduct that caused the harm was found to be intentional.  The conduct usually has to be outrageously bad for a judge to award this type of compensation.  Punitive damages are governed by state law and therefore awards of this nature vary across the county. 

If you suffered personal injuries as a result of another individual or entities willful conduct, you may be entitled to a significant amount of compensation.  Contact our experienced personal injury attorneys for a consultation today. 

Monday, November 17, 2014

Where Can You Bring a Personal Injury Lawsuit

Accidents happen and we do not have any control over their circumstances, including the location where they occur.  You might be injured while passing through or spending significant time in a state other than the one you live in.  If you are, you might become worried that it will be difficult to recover for your injuries or that you may be unable to recover at all.  This is not the case, as you can sue to recover for personal injuries in a variety of states, depending upon the circumstances of your case.

In order for a court to hear a particular case, it must have jurisdiction.  There are two types of jurisdiction and both are required.  Subject matter jurisdiction relates to the type of case being brought.  For example, a family court can only hear certain cases that relate to domestic relations.  The subject matter jurisdiction of a court is decided by statute.  Personal jurisdiction is the courts ability to decide a case on behalf of a particular party.  Usually, personal jurisdiction rules are examined in relation to a defendant.

For the most part, if the defendant that caused your injuries resides in or does business in a particular state, you can bring a lawsuit in that state.  When the defendant does not do business in or reside in the state where you want to bring a lawsuit, the rules become a bit more complex.  A lawsuit can be brought in any state where service of process was affected.  This means that as long as the person was served with the requisite legal paperwork in the state, the lawsuit can be brought there.  Also, simply put, a defendant can be sued in any state where they have a reasonable amount of contacts.  This is decided on a case by case basis, but, the general theory is that if a defendant could have reasonably known that they may be sued in a particular state, the suit can be brought there. 

Many personal injury actions result from automobile accidents of some kind.  Each state has a statute granting it jurisdiction to decide suits stemming from automobile accidents that occur on their roads.  When you drive in a particular state, you are consenting to be subject to a lawsuit there should you be involved in an accident.  These motorist statutes are often utilized by personal injury attorneys.

The rules relating to where a lawsuit can be brought can be complicated and difficult to understand.  If you were injured and are concerned about where to bring a lawsuit, contact us for a case evaluation today.

Monday, November 10, 2014

Injured While On Medicare: What Happens Now?

When you are injured in an accident due to the negligent, reckless or willful conduct of another, you may be entitled to receive a settlement.  Often times, these settlements are paid out by insurance companies.  Unfortunately, if you are a Medicare beneficiary, you may have to forfeit some or all of the settlement you receive.

Medicare is federally provided health insurance.  Those that are 65 years or older and some younger people with qualifying conditions have the option to be covered by this type of insurance.  If you are injured in an accident, Medicare may cover some of the costs of your medical treatment.  But, pursuant to the Medicare Secondary Payer laws, Medicare does not have to pay for medical expenses if an enrollee is receiving a settlement or other award from an insurance company as a result of their injuries.   Medicare can ask to be reimbursed for the money it paid out for medical expenses.

Generally, if you are a Medicaid enrollee, are injured in an accident and make a claim against a defendant that has liability insurance, you must report the case to Medicare.  Once a case is reported to Medicare and they determine that they may be able to recover any of the money they laid out for medical bills, they will send you a Rights and Responsibilities letter outlining the process.  You will then usually receive a Conditional Payment Letter within approximately two months.   This letter will detail all of the claims they paid and expect to be reimbursed for once you receive a settlement.  It is important to note that the amount listed on the letter is usually not the final amount.  These letters are updated and reissued every 90 days and all of the claims on the letter may not be related to the accident.  Therefore, you must review the claims to determine which need to be deleted.  Once you do this, you can contact Medicare using the instructions included in the letter to have the amount updated.  Once you receive a settlement, you must, again, let Medicare know.  They will then issue a Demand Letter with a final amount due and the date by which payment must be submitted.

If you were injured while receiving Medicare benefits and have filed a lawsuit, you might find yourself faced with a Conditional Payment Letter.  Be sure to show this letter to your attorney as soon as possible.


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Richard F. Silber is admitted to practice in Washington, D.C. and Maryland. From his office in Georgetown, he and his legal team assist clients throughout the Washington metropolitan area.

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| Phone: 202-338-0687

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