Negligence Liability For Failing To Remove Accumulated Snow

Not surprisingly, failure to clear your sidewalks of snow can get you sued if someone falls on the snow and gets hurt.  Even though property owners aren’t responsible for the fact that it snowed or how much or how long it snowed, they still have to remove it in a reasonable and timely manner.  The Iowa Supreme Court has issued decisions in the past that concerned liability for negligent snow removal.

The duty to remove natural accumulations of snow is based on actual or constructive notice of the snow accumulation and a reasonable period of time within which to remove it.  In other words, the property owner has to know that snow has accumulated and have time to remove the snow before there can be liability for negligence.  Regarding the timeliness of snow removal, the Iowa Supreme Court does not require property owners to remove a snow accumulation before a snowfall has ended.

The requirements of notice and an opportunity to remove the snow only apply to situations involving natural accumulations of snow.  They do not extend to situations in which the property owner has control over the condition that caused the snow to accumulate.  Examples of such an artificial condition include landscaping and architectural design.  A property owner is presumed to know about an artificial snow accumulation.

Liability can also arise by doing a shoddy job of snow removal.  Poor snow removal alters the natural snow accumulation and turns it into an unnatural accumulation.  So does removing the snow and depositing it elsewhere; if someone falls in the area where the snow was deposited after removal, that’s considered an injury caused by an unnatural accumulation of snow.  Another possibility is removing snow and depositing it in the street or creating a large snowbank that restricts visibility, either of which can cause a car accident.  Under any of those scenarios, the stricter liability rules for removal of unnatural snow accumulation apply rather than the more lenient standards for removal of natural snow accumulations.

Recovery Of Money Damages For Bystander Emotional Distress

Iowa law allows plaintiffs in some instances to recover damages for emotional distress damages caused by witnessing a loved one’s serious injury or possible death.  This claim is known as “bystander emotional distress.”  In the 1981 Iowa Supreme Court case that first allowed bystander emotional distress claims, the court gave a stark example of such a situation – A parent who sees her child run over by a car is allowed to sue for the horror caused by witnessing that tragedy.

When determining whether a bystander is allowed to seek emotional distress damages because of witnessing a catastrophic event, such as a motorcycle accident, Iowa’s courts consider (1) whether the bystander was located near the scene of the accident; (2) whether the emotional distress resulted from a direct emotional impact from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence; and (3) whether the bystander and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.

Iowa’s courts are careful to ensure that the bystander’s claim is serious and has some guarantee of genuineness.  The law cannot compensate for every minor disturbance to a person’s mental wellbeing.  To be compensable, the bystander’s mental distress must be serious.  While mental distress may exist without objective physical symptoms, compensable mental distress should ordinarily be accompanied with physical manifestations of the distress.

In addition, a bystander emotional distress claim requires proof that a reasonable person in the bystander’s position would have reason to believe, and the bystander must believe, that the direct victim of the accident would be seriously injured or killed.  Not all injuries reach the level of severity necessary to give rise to a bystander emotional distress claim.  “Serious injury” means bodily injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.

Personal Injury Or Wrongful Death Cases Involving Children And Attractive Nuisances

Normally property owners are not responsible for a trespasser’s personal injuries or wrongful death on their property.  The reason for that is simple — A property owner can’t protect people that have no business being there and aren’t known to be there.   But children who are too young to appreciate danger are an exception to that general rule.  Under the “attractive nuisance” doctrine, property owners can be held liable for injuries to or the death of a young trespassing child.

Attractive nuisance claims are difficult to prove.  Iowa’s courts have been reluctant to ascribe a broad meaning to the concept of an “attractive nuisance.”  In fact, the Iowa Supreme Court sometimes seems to regret ever having recognized the attractive nuisance doctrine in the first place.

A sign of that regret is the supreme court’s strict concept of what constitutes an attractive nuisance.  A person suing for personal injuries to or wrongful death of a child must prove quite a bit to be successful:

• The property owner was aware or should have been aware that children were likely to enter the property.  Perhaps there’s something on the property that would attract young children and draw them onto it.  Or maybe the property is near a school, park, or some other area where children are frequently passing by.
• The property owner has something on the property that could clearly be harmful or deadly to children.
• The trespassing child is too young to comprehend the risk of the dangerous or deadly object on the property.
• The danger to children is greater than any difficulties that would confront the property owner if the owner eliminated the hazardous object or exercised caution to make the object safer.
• The property owner did not take reasonable safety measures to protect children from the dangerous or deadly object.

The attractive nuisance doctrine is a corollary of the special rules regarding child/vehicle car accidents.  Both recognize that in certain situations regarding young children adults must give more care than adults normally would for older children or adults.

Loss Of Consortium Claims Involving Children And Personal Injury Or Wrongful Death

Earlier I wrote about spousal loss of consortium claims.  But loss of consortium claims involving children can also arise from personal injury or wrongful death, defective product, car accident, motorcycle accident, or dog bite claims.  There are two types of consortium claims involving children — Those in which a parent sues for injury or death to a child and those in which a child sues for injury or death to a parent.

A child’s claim for damages caused by a parent’s injury or death is known as “loss of parental consortium.”  Loss of parental consortium represents the loss of the services that the injured or dead parent would have provided to the parent’s children.  Loss of parental consortium also  can compensate for the loss of the injured or deceased parent’s company, affection, and cooperation and the assistance of the injured parent.  In Iowa, adult children can also recover for the loss of parental consortium.

Another claim available to children that arises only for the death of a parent is “loss of parental support.”   A child may recover the value of the amount of financial support that the deceased parent would have contributed had the parent lived.  Damages for loss of support are generally limited in time to when the child reaches age eighteen, although there are a few exceptions to that rule that rarely come into play.

The factors used in determining the value of loss of parental consortium and loss of parental support are the same as those for spousal consortium and spousal support claims.  I identified those in my earlier post.

Iowa law also provides parents claims for injury to a minor child and death of a minor or adult child.   A parent may recover damages for the expense and actual loss of services, companionship, and society resulting from injury to or death of a minor child.  A parent may also recover for the expense and actual loss of services, companionship, and society resulting from the death of an adult child.  Note the key distinction between minor children and adult children under this law — Once a child is considered an adult under Iowa law, a parent may only sue for loss of consortium and other damages if the adult child dies.  Parents usually do not have any legal rights stemming from an adult child’s injury, no matter how bad that injury might be.

Remedies For Injury To Or Wrongful Death Of A Spouse Under Iowa Law

Under Iowa law, when one spouse suffers personal injuries or wrongful death, for example in a dog attack, motor vehicle accident, motorcycle accident, by a defective product, or as a result of police misconduct, the uninjured or surviving spouse has the right to sue for “loss of consortium.”  Spousal consortium is the fellowship of a husband and wife and the right of each one to the benefit of company, cooperation, affection, services, useful, industry, attention, and aid of the other.  Those types of damages are often placed in the categories of “loss of services” and “loss of marital benefits.”  If a spouse dies, the surviving spouse may recover  the value of the amount of financial support that the deceased spouse would have contributed had the spouse lived.

To decide the value of a deceased spouse’s services that would have been provided to the surviving spouse, courts evaluate  the circumstances of the deceased’s life; the deceased’s age at the time of death; the deceased’s health, strength, character, and life expectancy; the deceased’s capacities, abilities, and efficiencies in performing spousal duties; the deceased’s skills and abilities in providing instruction, guidance, advice, and assistance to the surviving spouse; the surviving spouse’s needs; and all other facts and circumstances bearing on the value of the deceased spouse’s services.

In determining how much support a deceased spouse would have contributed to the other spouse, courts consider the deceased spouse’s  age at the time of death; health, strength, character, skills, and training; life expectancy of the deceased and the surviving spouse; previous employment and earnings; expectancy for earnings in the future; the age of the surviving spouse; the present and future need for support; the amount of money out of the deceased’s income that would have been available for support after payment of federal and state taxes; and all other facts and circumstances bearing on the value of financial support.

Snow, Ice, And The Sudden Emergency Doctrine

With wintertime driving comes the increased likelihood of motor vehicle accidents causing personal injuries or wrongful death.  Falling snow, morning fog during a brief warming period, snow, ice, and chemicals on roads, tall snow banks, frosted windows, and snow or slush spray from the road can all decrease or eliminate visibility, make  stopping and handling difficult, and sometimes simultaneously cause all those problems.  Drivers certainly need to exercise more caution during winter driving and are generally expected to do so, or face negligence liability for an accident.  But sometimes all the care in the world won’t prevent a wintertime accident.  In extreme circumstances, drivers may try to use the “sudden emergency doctrine” to avoid negligence liability.

The sudden emergency doctrine excuses a defendant’s negligence when confronted with an emergency not of the defendant’s own making.  Sudden emergency has been defined as “(1) an unforeseen combination of circumstances which calls for immediate action; (2) a perplexing contingency or complication of circumstances; (3) a sudden or unexpected occasion for action, exigency, pressing necessity.  A sudden emergency requires an “instantaneous response,” or “something fairly close.”

Iowa courts will usually tell juries that a sudden emergency is an unforeseen combination of circumstances that calls for immediate action or a sudden or unexpected occasion for action.  A driver of a vehicle who, through no fault of the driver’s own, is placed in a sudden emergency, is not chargeable with negligence if the driver exercises that degree of care which a reasonably careful person would have exercised under the same or similar circumstances.

The sudden emergency doctrine has been applied to motor vehicle accident cases.  Drivers use the sudden emergency defense to argue that they were not negligent because they encountered something unexpected on the road and did the best they could.  Examples include cases involving hazardous road conditions and ice.

A word of caution for those of you expecting to barrel around on the roads this winter and then scream “sudden emergency!” when the other driver you obliterate sues you.  Although the Iowa Supreme Court has retained the sudden emergency doctrine as an aspect of Iowa’s neglience law, it has expressed dissatisfaction with the doctrine and indicated various reasons why the doctrine should be eliminated from Iowa law.  So the next person who tries to use the sudden emergency defense may find that it no longer exists in Iowa.

Regardless, the sudden emergency doctrine is rarely determined to be applicable to a motor vehicle negligence case.  On the few occasions when the sudden emergency defense has been before Iowa’s appellate courts over the past twenty years, the courts have ruled in every case that the defendant was not entitled to argue the sudden emergency defense because there was no “sudden emergency.”  The Iowa Supreme Court has warned that it’ll narrowly apply the sudden emergency defense to avoid turning every road condition into a “sudden emergency.”

The Iowa Court Of Appeals Reminds You To Prove Causation

There’s a question that sometimes seems to be overlooked in civil cases — How did the defendant’s supposed wrongdoing harm you?  You have to prove not only that the defendant violated some aspect of the law, but also that the defendant’s violation caused you injuries and damages.  That’s generally referred to as “causation.”  The standards for causation vary from one type of claim to another, but the basic principle is always that you must prove you were harmed by the defendant’s conduct or you have no claim.  The principle applies to a personal injury suit, products liability claim, motor vehicle accident claim, motorcycle accident claim, dog bite claim, employment or labor law claim, construction defect claim, business practices or contract law claim, debt collection practices law claim, nuisance law claim, or insurance law claim.

This is not an issue to be taken lightly.  Money damages do not automatically flow from a determination that a defendant violated the law.  If Point A is the defendant’s liability and Point C is your injuries and damages, you need to have a good argument for Point B, which is causation, or the connection between the defendant’s liability and your injuries and damages.

The Iowa Court of Appeals’s recent decision in Stutzman v. West Des Moines OB/GYN illustrates this concept in tragic fashion.  Stutzman was a wrongful death case involving Julie Stutzman’s death from cancer.  Her estate and surviving family claimed that her doctor committed malpractice in the manner in which the doctor handled some of Julie’s earlier doctor visits.  The plaintiffs argued that, had Julie’s doctor properly handled and responded to earlier communications from Julie, Julie’s cancer would have been detected sooner and she would have had a higher chance of survival.

The Stutzman plaintiffs lost because they could only prove one aspect of malpractice against Julie’s doctor and clinic — A charting error.  But they were unable to establish that the charting error made a difference in the course of Julie’s subsequent cancer diagnosis and death, i.e., causation.  So Stutzman is a recent, good example of the importance of having sufficient proof of causation to connect the defendant’s wrongdoing to your harm.  Even though Julie’s family proved that her doctor did something wrong, they could mot prove that the doctor’s error harmed Julie, and they lost their case.

The Impact Of Your Social Media Use On Your Legal Rights

Your social media posts are not private.  Nor is there any law that prevents a lawsuit opponent from using against you something you posted on Facebook, Twitter, Instagram, or any of countless internet websites and blogs.  If you’re involved in a personal injury suit, products liability claim, motor vehicle accident claim, motorcycle accident claim, dog bite claim, employment or labor law claim, construction defect claim, business practices or contract law claim, debt collection practices law claim, nuisance law claim or insurance law claim, that information could compromise your case.

It is routine for opposing counsel in all types of cases to request this information as part of their pretrial investigation.  They want to know if you’ve posted anything anywhere online that contradicts any part of your claim.  They also want to know if there are any photos or videos of you doing things that you shouldn’t be doing or claim that you can’t do.

Judges increasingly allow opposing counsel access to this information, even if you’ve marked it as private in your online profile or settings.  To judges, your online musings, pictures, and video are as much fair game in a lawsuit as would be a diary, journal, scrapbook with photos, etc.  So odds are good opposing counsel will get this information whether you like it or not.

And that only covers opposing counsel’s attempts to come in through the front door.  As long as opposing counsel doesn’t communicate directly with you, they’re also free to view anything that you’ve left publicly available.  So opposing counsel may be poking around your internet persona and you won’t even know it until it’s too late.

The moral of the story is to avoid putting anything online that your common sense tells you will be used against you by opposing counsel.  Chances are good counsel will eventually get that information somehow.  And they’re guaranteed to try to use it.

The Importance Of A Prompt Investigation In Accident Cases

In an earlier post I discussed various things that you should do if your involved in an accident.  People also often forget about the importance of an immediate investigation in motorcycle crash and motor vehicle accident cases.  A good investigation can help with proving both liability and responsibility for injuries or death after a crash.  Don’t assume that responding law enforcement will complete more than the basic accident investigation report or will get all of the information that a lawyer will need in the future when trying to prove your case.

Try to get the name, address, and telephone number of every possible witness in the area.  If you’re too injured to do that, ask someone (if you can) to try to help you with that.  You need witnesses to testify about the crash and support your liability and injury claims.  For a common fender-bender, the responding officer will likely only get information from people who happen to be standing around the scene when the officer arrives but will miss those who have already left.  If someone doesn’t get the witnesses’ names and contact information, they’ll never be found.

Photograph, or ask someone to photograph, the vehicles and the entire accident scene.  Try to think of everything that might be important about the scene — Road conditions, visibility, skid marks, obstructions to view, construction markers, traffic control signals, and lane markings are common examples of things that may later be important in your case but might only be temporary and not available for photographing later.

These things need to be done immediately after an accident while everyone is still at the scene and while accurate photographs are still possible.  Don’t expect that witnesses will magically be found or the scene can be magically recreated later for your lawyer.  Photographs can be especially important if liability is later disputed in your case.  If the other driver claims that a snowy or icy road prevented the driver’s vehicle from stopping, but you have a photograph taken at the scene that shows a clear and dry road, who do you think wins that argument?

Investigation into an accident should begin right away.  Whether the accident involves motor vehicles, defective products or dangerous conditions on property, evidence must be examined and preserved before it is lost or changed.  Photos showing conditions at the time of the accident should be taken before changes are made, and witnesses should be interviewed before memories are lost.  Remember, the insurance company will have an adjuster or investigator on the case immediately.  You should have someone on your side as well. – See more at: http://www.currieliabolaw.com/blog/why-is-it-important-to-investigate-an-accident-right-away/#sthash.KAPvxEci.dpuf

Black Boxes Aren’t Just For Airplanes — The Use Of Vehicle Data Recorders In Products Liability Cases

 

The National Highway Traffic Safety Administration (NHTSA) has proposed new regulations requiring that automobile manufacturers include vehicle data recorders, frequently called “black boxes,” in all motor vehicles produced after September 1, 2014.   Data recorders constantly monitor different types of data from a vehicle.   Especially important for “crashworthiness” products liability cases, data such as vehicle speed, braking, and whether the driver was wearing a seatbelt is recorded and maintained if the vehicle is in a crash.  Vehicle data from seconds before a crash is saved if a vehicle’s air bags deploy or the data recorder senses a collision has occurred.

Personal injury or wrongful death victims of crashes caused by vehicle defects can use the data from the recording devices.  Data from the vehicle’s black box can help determine why a crash occurred and whether a design or manufacturing defect caused or contributed to the crash.  That can be extremely useful if the vehicle’s data supports your case because data from the black box is difficult for vehicle manufacturers to refute, almost like DNA evidence.

Along with products liability lawsuits, black boxes can also impact ordinary motor vehicle accident cases too.  Vehicle data devices could establish a vehicle’s movement, speed, braking, etc., as well as seatbelt use or nonuse.  That information may be evidence in deciding which driver was at fault in the crash.