We at MBC handle a variety of injury cases. Some are clear cut and involve catastrophic injuries. Others are not absolutely clear cut and may involve injuries that are not catastrophic. My next trial is such a case, but it will be given the same preparation and treatment as all cases.
This case involves a 70-year old man who tripped and fell over a pallet underneath a box of watermelons at the local grocery store. He landed on his right side, injuring his shoulder and having to undergo surgery. The pallet was the same color as the box and one could hardly see the four to six inches that the pallet protruded from the box. Store employees had “pallet guards,” which were soft devices to put around the edges of the pallets to prevent tripping. They forgot to put them on this particular day. That would seem like a clear cut case, but the store says it is not at fault, that our client should have seen the protrusion and, in any event, he was old and his shoulder was already worn out.
To counter the argument that they did nothing wrong, we have shown standards of the industry regarding guarding protrusions such as this and that this store and every other store that has such a protruding pallet needs to mark it with cones or similar warnings or use pallet guards.
To answer the claim that our client was at fault, we hired a “human factors” expert to explain that the main marketing tactic of stores is to attract your visual attention to displays, products and activities. They want people looking anywhere other than the ground. That was the situation in our case. There was an outdoor kiosk selling fish just across from the watermelons and there were people crowding around. It was a visual attraction. The corner of the pallet was not.In response to the cynical argument that the client was old and already had a bad shoulder, we have two answers. First, his surgeon says that, but for the fall, the client would not have had the surgery. Second, the law says a negligent party is not entitled to a healthy victim. If you hurt someone who, because of age, prior disability or other weakness, has a worse injury than a younger, healthier person might, you pay for the whole injury caused. That is basic fairness.
The case is not the biggest in the office, but we are busy preparing it for trial and hoping to report a positive result on a blog in the near future.
This is an interesting case. Several years ago, there was a ninety year old woman who fell down a small flight of stairs inside a restaurant, and subsequently died from the injuries. The family sued for negligence. I don‘t know the outcome, but I remember believing at the time that it seemed like a frivolous lawsuit. If anything, the family should have been assisting her more closely. As I see the problems facing the elderly, such as my own mother, I’m beginning to realize that it is not always that clear cut.
ReplyDeleteGood luck with the case.