Recently in Personal Injury Category

September 28, 2012

Maryland Court of Appeals overturns verdict where judge failed to give Assumption of the Risk Jury Instruction

danger.jpgThe Maryland Court of Appeals, earlier this week, overturned the Circuit Court for Prince George's County, finding that the Judge erred by failing to instruct the jury on the issue of Assumption of Risk in a personal injury trial.

Our Annapolis Maryland Injury Attorneys have years of experience representing those who have been injured by the negligence of others.

In S&S Oil v. Jackson, the Plaintiff sought personal injury damages as a result of injuries she claimed she sustained while stepping on an uneven flooring surface in a gasoline service station undergoing renovation. The service station's defense was based in part of the allegation that the Plaintiff was contributorily negligent and that the Plaintiff assumed the risk of injuries.

At trial, the station owner testified that there was orange or red caution tape across part of the construction area and a "Watch Your Step" sign somewhere in the immediate vicinity. The Plaintiff testified that she did not see either the caution tape or the warning sign and that she assumed the floor surface was level.

Traditionally, at the close of evidence, the jury is read jury instruction, including an instruction on the issue of Assumption of Risk, if the trial testimony has generated the issue. The most recent jury instruction for Assumption of Risk, as published in the Maryland Civil Pattern Jury Instructions, Fourth Edition, reads as follows:

A Plaintiff cannot recover if the plaintiff has assumed the risk of injury. A person assumes the risk of an injury if that person knows and understands the risk of an existing danger or reasonably should have known and understood the risk of an existing danger, and voluntarily chooses to encounter the risk.

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September 11, 2012

Maryland appellate case asks Court to adopt Doctrine of Comparative Negligence

The Maryland Court of Appeals heard arguments yesterday in the case of Coleman v. Soccer Association of Columbia, et al. In the Coleman case, a Howard County jury found a Soccer Association negligent in its maintenance of a soccer goal which collapsed, resulting in the in an injury to the Plaintiff. Under Maryland's Contributory Negligence law, however, the Plaintiff did not recover any damages after the jury found that the Plaintiff was also negligent, and Plaintiff's negligence contributed to his injury.

Our Annapolis Maryland injury attorneys have years of significant experience representing accident victims and rebutting allegations of contributory negligence argued by Defense attorneys.

Under the Doctrine of Contributory Negligence, a Plaintiff who in any way is determined to be negligent - even if determined to be only one percent negligent - is precluded from recovering any damages from a negligent Defendant. The rationale is that the Plaintiff has contributed to his/her injuries.

Under a Comparative Negligence system, as advocated by the Plaintiff's attorney in the Coleman case, the jury would be asked to assess the relative fault of the Plaintiff or Defendant. If, for example, the jury found the Defendant was 80% negligent and the Plaintiff was 20% negligent, Plaintiff's damages would be reduced by 20%.

The Coleman case represents an effort on the part of a Plaintiff's attorney to ask the Court to overturn the Doctrine of Contributory negligence, which was first adopted by the Maryland Court of Appeals in 1847 in the case of Irwin v. Sprigg. Maryland is one of only 5 states that still abides by a contributory negligence standard (the other four are Alabama, Virginia, North Carolina and the District of Columbia).

Although several bills have been introduced in the Maryland General Assembly to create a comparative negligence system, these bills have failed on multiple occasions, amid heavy lobbying from various plaintiff and defendant-friendly lobbying groups.

The main arguments advanced by the Plaintiff is that the doctrine of contributory negligence is not a just system in that injured Plaintiffs are denied relief even in cases where the Defendant is determined to be negligent. Defendants argue that the legislature, rather than the Court of Appeals, should establish the law. Additionally, other defense organizations argued that overturning the contributory negligence doctrine, would "[throw] a rock in the pond of Maryland court system and would spur years of chaos and litigation."

The Court did not indicate when it would issue its decision, but typically takes several months to issue its decision. In the mean time, legislators may introduce another effort to legislate comparative negligence in Maryland.

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August 31, 2012

Maryland Court invalidates agreement that prevented family from seeking damages for child's traumatic injury

The Court of Special Appeals ruled this week that an exculpatory agreement created by a "commercial enterprise" executed by adults on behalf of a minor child are void and unenforceable as a matter of public policy.

Our Annapolis Maryland injury attorneys have years of experience representing those who have suffered catastrophic personal injuries caused by the negligence of others.

In Rosen v. BJ's Wholesale Club, No. 2861 September Term, 2009, the Court of Special Appeals overturned a Baltimore Circuit Court's finding that a pre-injury release agreement signed by a parent on behalf of her five-year old child fully released BJ's for all liability as a result of injuries suffered by the five-year old on a supervised play center at BJ's Warehouse.

When the family joined BJ's in July 2005, the father executed a release agreement involving the use of an indoor playground at BJ's called the "Incredible Kid's Club." The Club was a supervised drop-off point where members dropped off their children, while the adults shopped. Members' children were not permitted to use the play center unless the family signed a release containing exculpatory and indemnification clauses. The agreement read as follows:

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August 29, 2012

Woman sues Dallas Cowboys for third-degree burns

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A Dallas woman sued the Dallas Cowboys earlier this month after she allegedly suffered third-degree burns on her buttocks after sitting on a black marble bench outside Cowboys Stadium prior to an August 2010 scrimmage.

Our Annapolis Maryland injury attorneys have years of experience representing Plaintiffs who have been injured as a result of negligence involving an individual or business' duty to warn of a known danger.

The Complaint, which was filed in Tarrant County, Texas, alleges that that the Cowboys and team owner Jerry Jones were negligent in failing to warn Plaintiff Jennelle Carrilo of the danger of sitting on the bench that was exposed to the exceptionally hot August sun either by posting a sign or roping off the bench to prevent individuals from sitting.

The injury occurred on August 10, 2010, which had a high temperature of 101 degrees in Dallas. Plaintiff alleged that she did not realize the burns until she stood up to use the restroom.

Upon realizing she was injured, the Plaintiff left the stadium to go to Huguley Memorial Medical Center, where she was initially diagnosed with first-degree burns. Several days later, however, she began to feel dizzy and experience significant pain. She returned to the hospital where she was diagnosed with third-degree burns. She has since required skin graphs.

The Plaintiff has demanded a jury trial.

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April 13, 2012

Jury awards woman $1.9 million for overprescription of pain medication

pill bottle.jpgA 9-member jury awarded a woman $1.9 million Thursday, after it found that a doctor overprescribed methadone for pain treatment, which caused the woman to stop breathing and suffer brain damage. Overprescription of medication can have devastating effects for patients, including those in Maryland.

Our Annapolis Maryland medical malpractice attorneys have years of experience representing Plaintiffs who have suffered injuries as result of the negligence of health care providers.

The woman, Charlene Whalen of Bangor, Maine, sued Dr. Steven Weisberger who treated her for chronic back pain. The Complaint alleged that the dosage of methadone Dr. Weisberger prescribed was too high, which caused brain damage from oxygen deprivation after she stopped breathing while sleeping.

The doctor was a practitioner of a therapy called Prolotherapy, which involves injections into the area around a patient's spine that intentionally causes inflammation designed to help promote healing. Dr. Weisberger prescribed methadone from the resulting pain.

About 48 hours after she was prescribed Methadone, Whalen's fiancé found her unresponsive in the middle of the night. She was eventually revived, but the resulting deprivation of oxygen resulted in brain damage that affected her ability to multitask and perform tasks that would allow her to work.

The Plaintiff's experts opined that the amount of methadone Plaintiff was prescribed was eight times the amount recommended by experts in the field. The Defense countered that the dosage was within an appropriate range.

The Defense contended that the Plaintiff never alerted the pharmacist who filled the methadone prescription that she had breathing problems and suffered sleep apnea. Additionally, the Defense argued that Plaintiff had no future lost income, since she never intended to return to work.

The jury deliberated for less than two hours.

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January 30, 2012

Maryland Court of Appeals reinstates jury verdict for latex allergy discrimination

In Meade v. Shangri-la, a closely-divided Maryland Court of Appeals reinstated a jury verdict that awarded damages against a Howard County Montessori School, in favor of a parent with a latex allergy who requested that the school cease using powdered-latex gloves when changing student diapers. The jury found that the School discriminated against the parent, when the school administrator requested that the parent withdraw her child from the school after the parent disputed the school's rejection of her request.

Our Maryland injury attorneys have years of experience representing plaintiffs whose civil rights and rights defined by statute have been violated by others.

At trial, the Plaintiff argued that as a result of a severe allergy to latex, she requested that the school stop using latex gloves. After presenting the issue to the school administrator, the administrator initially indicated he would review the issue, but ultimately decided not to switch away from latex gloves since the school did not wish to switch suppliers. The administrator further explained that in an effort to accommodate the Plaintiff, he ordered staff members not to use powdered latex gloves on Plaintiff's son and to allow Plaintiff to pick up her son at the school's front desk so that Plaintiff did not have to venture further into the school to pick up her son.

Plaintiff followed up seeking a glove change once more so that Plaintiff would be allowed full access to the building and "be a part of [her] son's preschool experience." The administrator, who testified he feared litigation, responded with a request that Plaintiff withdraw her son from the school citing a clause in the school's contract that essentially allowed the school to ask any pupil to withdraw for any reason.

At trial, the jury found in favor of Plaintiff finding that Plaintiff's latex allergy was a physical impairment which substantially limited one or more of her major life activities and that the school denied her accommodations because of discrimination. She was awarded $1,683 in economic damages, $5,000 in non-economic damages, and $22,800 in attorney's fees.

The Plaintiff's law suit was based on a State statute and the Howard County Code, as opposed to the Americans with Disabilities Act ("ADA"). While the ADA, state, and county statutes may seem similar on their face in their efforts to avoid discrimination and promote reasonable accommodations to those with disabilities, the Howard County Code purports to address discrimination because of a "handicap," while the Americans with Disabilities Act addresses "disabilities."

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January 10, 2012

Family settles lawsuit for misapplied pesticide that killed two children

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A Utah family who lost two children from a pesticide that was misapplied by an exterminator outside their home settled a lawsuit against the company that employed the exterminator for an undisclosed amount last month.

Our Annapolis Maryland Injury Attorneys have more than 30 years representing Plaintiffs who have been injured by the negligence of others, including home contractors.

The family's lawsuit alleged that an exterminator for Bugman Pest and Lawn, Inc., placed Fumitoxin pellets within a burrow system that was less than 15 feet from the family's home. Fumitoxin is a rat poison. As result of this pesticide application, which was contrary to the manufacturer's specifications, five of six members of the family became sick, and the family tragically lost their 4-year-old and 15-month-old daughters.

The Utah Medical Examiner's office found elevated phosphine levels in the bodies of the two children. State authorities attributed the elevated phosphine levels to inhalation of fumes from the rat poison.

The family's lawsuit sought damages to compensate the family for negligence, infliction of emotional distress, nuisance and "abnormally dangerous activities" that were allegedly committed by the company and its employee.

The employee who administered the pesticide pleaded guilty in United States District Court in October, admitting that he applied Fumitoxin pellets within 15 feet of the family home in violation of Federal Environmental Protection Laws. He acknowledged that the application was inconsistent with the product's labeling and exceeded the required dosage. Prosecutors recommended a jail sentence of six months, followed by six months of home confinement.

The company owner, Raymond Wilson Sr., pleaded guilty and will be banned from purchasing pesticides for three years, which will likely put the company out of business.

As a result of the deaths of the two children, the Environmental Protection Agency prohibited residential use of Fumitoxin. The Utah Department of Agriculture and Food also tightened accountability requirements, mandating that consumers be notified in advance if any product with a "Danger" label is used at their home.


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January 4, 2012

Maryland attorneys attempt to seize housing authority property to fulfill lead paint judgment

truck.jpgArmed with an unsatisfied $2.59 million judgment against the Housing Authority of Baltimore City for lead paint liability, which has since accumulated more than $300,000 in interest, attorneys for two Baltimore Plaintiffs have sought a writ of execution to seize and auction 21 vehicles owned by the Housing Authority to fulfill a portion of the judgment.

Our Annapolis Maryland Injury Attorneys have years of experience successfully representing Plaintiffs in product liability actions, many of which involve a manufacturer or distributor's failure to warn of a known danger.

Although the Housing Authority has appealed the judgment to the Court of Special Appeals, the Baltimore Housing Authority elected not to post an appeal bond. Ordinarily a party who appeals a Circuit Court judgment may post an appeal bond to effectively set aside funds if the party loses the appeal. Since the Housing Authority did not post a bond, the Housing Authority is presently required to pay the judgment.

Earlier last year, the Baltimore City Housing commissioner stated that the agency was unable to pay the judgment because it would have depleted the Authority's resources to provide services to residents.

In addition to the Housing Authority's inability to pay, the parties have also been unable to agree which property belongs to the federal government versus property that belongs solely to the Housing Authority. Much of the property of the Housing Authority of Baltimore City belongs to the federal government and would ordinarily be out of reach for Plaintiffs. The 21 vehicles that were "tagged" for auction by the Baltimore City Sheriff are exclusively owned by the Housing Authority. On this basis Plaintiff's counsel seeks to see the vehicles auctioned off, with the proceeds used to fulfill a portion of the amount owed.

The vehicles amount to 10 percent of the Authority's vehicle fleet, and they are used for resident services. These vehicles were eligible for seizure because they were not purchased with federal money.

In addition to the amount owed by these two plaintiffs, the authority owes an additional $11 million other plaintiffs to satisfy other judgments involving lead paint and mold.
It is uncertain whether these vehicles will actually be auctioned off or if counsel for the Plaintiffs and the Housing Authority will be able to resolve their differences. Nevertheless, this is an example of a creative way to seek payment of an unsatisfied judgment.

Update: The Court of Special Appeals overturned the trial court's verdict on January 19. So for now, the Housing Authority will keep its trucks.

December 28, 2011

Jury awards man $10 million for scooter injury

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A Connecticut man who suffered a tramautic brain injury was awarded a $10 million verdict against Segway scooter company last week for the company's failure to provide a helmet during a 2009 demonstration at Southern Connecticut State University.

Our Baltimore Maryland injury attorneys and Annapolis Maryland injury attorneys have more than 30 years of experience representing victims of traumatic head injuries as a result of another party's negligence.

The Plaintiff, John Ezzo, was a student at Southern Connecticut where on September 16, 2009, Segway ran a program called "the Segway Challenge," an event to benefit the Special Olympics. The program, which was held in the school's ballroom, involved an obstacle course designed by Segway employees.

The Segway employees, however, did not bring helmets and Ezzo, at the suggestion of Special Olympic volunteers, rode the Segway through the obstacle course blindfolded. While riding blindfolded, Ezzo fell backwards and hit his head on the floor resulting in a traumatic brain injury.

As a result of the brain injury, Plaintiff's counsel argued that Ezzo dropped out of college. He became a handyman, unable to pursue his dream of becoming a police officer.

The jury forewoman cited the manufacturer's failure to follow its own safety requirements, which specified that its employees wear helmets while operating the equipment.
The $10 million that the jury awarded the Plaintiff was for non-economic damages as well as his permanent impairment.

Ironically, the owner of Segway, Inc., the manufacturer of the Segway HT also died after falling off of a cliff while operating a Segway. Jimi Heselden died in September 2010 after falling 80 feet.

Insurance companies, such as Progressive, have begun to offer Segway-specific insurance policies to cover accidents related to Segways.

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December 8, 2011

Hospital found liable for botched surgery performed by medical resident

A Michigan jury awarded a woman $2.5 million after she suffered a permanent injury as a result of a resident surgeon's error during a medical procedure.

Our Maryland medical malpractice attorneys have over 30 years' experience representing victims who have suffered as a result of medical providers' negligence.

Surgery was necessary for the woman after she had suffered a miscarriage in which she lost her 14-week-old fetus. As a result, she underwent a dilation and curettage procedure. She alleged in her lawsuit that her OB/GYN informed her that the procedure was routine and that she would be home by lunch.

During the surgery, which was performed by a resident surgeon, the woman's rectum and bowel were torn after her bowel snapped back after the resident grabbed a piece of bowel with ring forceps. Her lawsuit alleged that her doctor never made her aware that the resident performed the surgery.

After the surgery, the woman underwent an ileostomy, which is a procedure to create an opening in the skin to pass intestinal waste. She was also required to carry a bag which collects the waste for a period of three months.

As a result of the injury, she has suffered altered bowel patterns, pain and scarring.

At trial, she and her attorney argued that her OB/GYN failed to properly supervise the resident physician who performed the surgery.

Ultimately, the jury found the hospital that employed the surgeon and the resident liable for $2.5 million.

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November 4, 2011

Maryland assumption of risk defense requires actual knowledge of risk

snowy path.jpgTwo recent plaintiff-friendly Maryland Court of Appeals decisions have refined the "assumption of risk" defense that is often raised in personal injury and accident cases.

Our Annapolis Maryland Accident Attoneys have years of experience representing plaintiffs in personal injury cases as a result of accidents, including slip and fall cases.

Both cases, Poole v. Coakley, and Thomas v. Panco Management, concern submission of personal injury cases to the jury in light of the defense of assumption of risk. In both cases, the trial judge did not submit the issue of negligence to the jury. The Maryland Court of Appeals held that both trial judges erred in their rulings.

The Maryland Civil Pattern Jury Instructions currently defines assumption of the risk as follows: "A Plaintiff cannot recover if the plaintiff has assumed the risk of injury. A person assumes the risk of an injury if that person knows and understands the risk of an existing danger or reasonably should have known and understood the risk of an existing danger, and voluntarily chooses to encounter the risk."

After these two decisions, the Civil Pattern Jury Instruction will likely be modified to indicate that a person assumes the Risk only if he actually knew of an existing danger, not just that he "would, should, or could" have known of an existing danger.

The Poole case concerned the liability of a construction company for the injuries of a plaintiff who slipped on "black ice" while walking through a stream of water through an otherwise icy parking lot. The nature of the "black ice" was such that the plaintiff did not actually know that the danger was present, and therefore the Court of Appeals held it was error to grant the defendant's Motion for Summary Judgment on the issue of assumption of risk.

The Thomas case concerned the liability of an apartment management company for a tenant's injuries after she slipped on "Black Ice." Her testimony was that the "black ice" was positioned near the only entry and exit for her building. The trial judge granted Defendant's Motion for Judgment, holding that the Plaintiff assumed the risk of her injuries. The Court of Appeals reversed holding that Plaintiff's knowledge of the risk of slipping on black ice, and the voluntariness of her conduct were questions of fact to be resolved by the jury, rather than the trial judge.

Both cases will likely be retried, where a jury will determine whether the defendants were negligent.

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October 26, 2011

Parents sue hospital, pediatrician for faulty genetic counseling

gavel2.jpgA Portland, Oregon couple, filed a lawsuit seeking $23 million in damages over the practitioners' late diagnosis of their second son's Duchenne muscular dystrophy. As a result of the late diagnosis, the parents allege they were denied the opportunity to exercise "reproductive choices," prior to their third son being born with the same condition.

Our Annapolis and Baltimore Medical Malpractice Attorneys have years of experience representing Plaintiffs whose children have been affected by catastrophic birth injuries. These injuries have a lasting emotional and financial impact on parents, as they must often pay for a lifetime of medical care and see their children subjected to pain and suffering.

The Oregon lawsuit alleges that due to the negligence of the defendants, the parents will watch both boys lose the ability to walk by their early teens and will ultimately die from the progressive condition.

The first son was born in 2003. The lawsuit alleges that the first son immediately showed developmental abnormalities after birth. Although the parents sought medical help, the son was not diagnosed with the condition until October 2010, which was two years after their third son was born. Their third son is also affected by the disease.

The suit alleges that the defendants failed to recognize the second son's abnormalities and failed to diagnose him, and moreover failed to advise them of the likelihood of a subsequent child having the same condition.

Duchenne's muscular dystrophy is a condition that affects one in 3,000 boys, which includes delays in walking, trouble going up stairs, frequent falls and large calf muscles. There is no known cure.

Cases like this are often difficult and sensitive, because such cases could send a negative message to children when they learn that their parents may wish that they were not born. Additionally, these cases might suggest that a child that is handicapped is less desirable than a non-handicapped child. These critiques overlook the emotional and painful impact these issues have on families.

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October 19, 2011

Ohio wild animal escape prompts discussion on Maryland Animal Law

lion.jpgIf you haven't heard yet, there are about 56 lions and tigers and bears that escaped and are 1 remaining monkey that escaped and is on the loose from a Zanesville, Ohio preserve Monday after the owner of the property, Terry Thompson, apparently decided to release all of the animals from his property and then decided killed himself. This has certainly disrupted life in Ohio, as the local school district canceled class in light of the threat of attack.

Our Annapolis Maryland injury attorneys and Annapolis Maryland Dog Bite attorneys often receive calls from those who have the misfortune of being the victim of dog bites from another's pet. The law contemplates a remedy for a victim against the owner, although the remedy is different depending on whether the animal is a wild animal or domesticated animal.

Under Maryland law, an animal owner is Strictly Liable for injuries caused by wild animals as long as the injured person did nothing to bring about his or her injury. In other words, by the very nature of Mr. Thompson maintaining the lions, tigers and bears as pets, he is responsible for any damages they cause, whether it is damage to person or property. Since Mr. Thompson is now deceased, if one of Mr. Thompson's animals attacks a human or damages another's property, a claim will likely be made against his estate.

Domesticated animals, like dogs and cats, are treated differently. For an owner of a domesticated pet to be proven liable, an owner is not strictly liable for injuries caused by domestic animals unless the owner has knowledge of the animal's dangerous propensities that are not common to the species. In other words, the owner has to know that the animal has the propensity to attack humans.

You might have heard the phrase that "every dog gets one free bite." In other words, it is often misunderstood that unless the dog has bitten before then there is no owner liability. That is not always true, because an owner can also be liable for negligence when he exerts ineffective control over his animal where an injury is likely to occur.

If the dog has bitten a person before, however, obviously the owner is on notice of the animal's tendencies and that certainly supports proving liability. If an owner knows that his dog is vicious, then the owner will be strictly liable for the injuries his animal causes, just like the owner of a wild animal.

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October 15, 2011

Jury awards $1.4 million for traumatic birth injury

A Jefferson County, Kentucky Jury awarded $1.4 million in damages to a woman, whose premature baby was decapitated during delivery at a local hospital in 2006.

Our Baltimore Annapolis Maryland Medical Malpractice Attorneys have years of experience representing Plaintiffs who have been affected by traumatic birth injuries.

The jury found the two doctors who conducted the procedure, Dr. Joseph Bilotta and Dr. William Koontz, liable for the full extent of the awarded damages. Meanwhile, the hospital and nurses involved in the case were held not liable.

All parties to the suit acknowledged that it was an extremely rare occurrence that the fetus was decapitated during birth. The doctors' attorney argued to the jury that the baby would not have survived regardless of the doctors and nurses actions, because the pregnancy was only about 21 weeks in duration.

The Plaintiff's attorney, however, argued that the mother was about 24 weeks into the pregnancy, where babies are potentially viable.

The Plaintiffs argued that the doctors failed to remove a cerclage, a device resembling a string, which is a surgical tool used to keep the Plaintiff's cervix closed. When the fetus was being delivered, the string acted "as a noose" which caused the decapitation.

The doctor acknowledged that he initially tried to deliver the baby with the cerclage intact, but eventually removed it. But the allegation was that it was removed too late in the procedure.

The $1.4 million the jury awarded was to compensate the mother, Micheatria Donelson, for her pain and suffering. Her attorneys argued that she is now depressed, has panic attacks and is unable to sleep more than a few hours each night.

On a slightly less somber note, she is now the mother of a two-year-old daughter.

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September 15, 2011

Violation of building code nets settlement for victim's mother

1160677_chicago_skyline.jpgA Chicago apartment management company settled Tuesday a wrongful death suit brought by the mother of a 24-year-old who suffered a severe brain injury and ultimately death after falling from the second floor porch of his girlfriend's apartment.

Our Maryland attorneys have years of experience successfully representing Plaintiffs who have been catastrophically injured by accidents caused by the negligence of others.

The case settled for $975,000. The action was brought by Sean Heflin's mother, Jane Heflin, and alleged that the porch railings were about 10 inches lower than the 42 inches required by the Chicago building code. The suit was brought against the apartment building's owner, Stammich Management.

In Illinois, violation of an ordinance, establishes "negligence per se." In other words, the fact that the Management company maintained railings that were 10 inches lower than the Chicago building code conclusively creates a presumption that the management breached a duty to exercise reasonable care. At trial, the Plaintiff would still need to prove that the management company's breach of the duty caused the injuries and that Plaintiff suffered damages.

In Maryland, the law is subtly different. Violation of a statute or ordinance does not constitute negligence per se, but is generally considered evidence of negligence. In other words, Plaintiff still needs to prove that the defendant maintained a duty and breached his or her duty in addition to proving causation and damages.

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