Negligence & Liability Cases
The first five years I was a lawyer, I was involved in every area of the law. For the past 34 years, my practice has been limited to only personal injury cases including automobile accidents and medical malpractice. So why did I make a decision to spend my life in this type of law?
The practice of personal injury law is interesting and you get to help a lot of people and their families who suffered harm and have had their lives devastated.
My Personal Injury Lawyer Responsibilities
Personal injury lawyers also refer to themselves as trial lawyers. The reason is we get into court a lot. I deal with insurance companies on every case and we all know that they do not stay in business because they are generous or even reasonable in handling payment of a claim. Therefore, a lot of cases are not settled and the only recourse is to take the case to court before a jury. There are two parts to every personal injury case. The first is preparing the case for trial and the second is the actual trial. Preparing a case for trial is a lot like preparing a movie from the inception of the idea for the movie until the time it plays at the theater. As a trial lawyer, I have to act like a film producer in preparing the case, the witnesses, and the exhibits. I then have to write the script for the questions I ask each witness as well as the cross examination. Let’s not forget the opening and closing arguments, an important component that necessitates many hours of diligent preparation. Then I have to play director when I prepare the witnesses for trial. I have to tell them how to act and react to questions in the courtroom; how to present themselves before a jury (including what to wear); and how to respond to the cross examination of the other attorney. Since I am involved in the trial as well, I also have to use acting techniques in front of the jury.
Personal Injury Case Research
In handling personal injury cases, especially medical malpractice cases, a lawyer must have knowledge of the subject. If I have a case involving failed surgery on a shoulder, I have to go to the medical library and read books on surgical techniques. Handling a slip and fall case at a construction site means that you have to be aware of what goes on at a site and review safety measures and government regulations.
It’s interesting work because each case is different.
The Legal Competition and My Attorney Career Inspiration
The competition also appeals to me. If I lose the case, I lose everything. I lose the money that I’ve put forward on the case (sometimes exceeding $50,000). I don’t get paid a nickel for my time. I could put hundreds of hours into a case and then wind up with nothing.
Each day I walk in the office I know that I will be involved with a case that interests me and gives me a chance to be successful for my client and myself. That is inspiring, and allows me to feel that I can make a positive difference.
Every law student spends his time in class daydreaming as to the type of law he wants to practice when he graduates. Throughout the years of your legal studies, you take classes in a variety of law subjects including property law, business law, criminal law, personal injury law, estates and trusts, constitutional law, tax law, etc. It is natural that as you move through different courses, you consider whether you would want to spend the rest of your life dealing with this type of law.
Of course, when you graduate and become a lawyer, you realize that it’s not only the written law that you’re dealing with but the personalities and situations you encounter while working in that area of the law.
Life as a New Pennsylvania Lawyer
I spent my first five years in a general practice law firm. Without any question – it’s the best type of experience any young lawyer can have. You’re handling every aspect of the law including dealing with clients, their problems, solutions for those problems, and the court system. After five years, I decided which area of the law I wanted to practice for the rest of my life. I had to factor in which was the most interesting, exciting, intellectually stimulating, and the type of people I would enjoy be associated with. Here were my evaluations.
Bottom line, this is not the type of law to practice if you are a sane individual and want to have a happy life.
So did I make the right decision when I chose to practice personal injury law here in Chester County? Find out in my next blog post – How I Became a Chester County, Pennsylvania Personal Injury Lawyer – Part II.
Déjà vu all over again – A case similar to the famous McDonald’s hot coffee case.
I recently settled a case for a young lady who suffered severe burns on her lower arm and wrist while attempting to remove a roasted chicken from a heated self-service cabinet at a well-known Chester County, Pennsylvania supermarket.
When reaching into the enclosure, she placed her arm on the bottom of a metal casing which surrounded the opening in which the roasted chickens were warming, In order to retrieve the chicken, she had to place most of her arm inside the cabinet. Although, the metal casing was never measured for its true temperature (it had been replaced by the time we got the case), it was hot enough to cause severe burns to my client who merely rubbed against it for about one to two seconds.
Numerous burn treatments were required for many months and she was left with a permanent scar. She also experienced significant pain during her recuperation.
Hot Coffee Burn Case Similarity
The supermarket and its insurance carrier at first refused to accept any blame. They equated it to the famous McDonald’s coffee spill case and said that it was my client’s fault for rubbing against the cabinet and that everyone knows warming bins are hot. We agreed that the bins are supposed to be warm but argued there was a big difference from being merely “warm” and being so hot that mere contact could cause full thickness tissue burns within two seconds.
During our investigation we learned that there had been several other cases reported to the supermarket of people suffering serious burns when reaching inside these warming bins and that although the store was aware of the problem it made a conscious decision not to reduce the temperature or cover the metal with some type of insulation to protect the customers.
One would think that if a store owner knew it was injuring its patrons, it would take better steps to correct the problem to protect its customers. This could be as simple as covering the hot metal or, at the very least, providing a warning to those who were about to reach inside.
Peter Hart lectured before the Chester County Bench Bar Conference for the Judges and attorneys on the new law dealing with responsibility of negligent defendants when there are more than one.
Act No. 17 which amends provisions relating to comparative negligence, became law on June 28, 2011. The new law is not retroactive. It applies to all negligence causes of action which arise on or after June 28, 2011.
It partially (or as some may convincingly argue) repeals the rule of joint and several liability.
Under the old law multiple defendants who were found to be negligent in causing one’s injuries and whose negligence was a substantial factor or factual cause in bringing about those injuries, could be held jointly and severally liable and, as a result, any one defendant could be required to pay the entire verdict. Thereafter, they could look to the other defendants for contribution. In essence, a defendant could be responsible for the entire amount of the plaintiff’s award as long as he or she was found to be at least one-percent at fault.
The new Act modifies joint and several liability by only holding each defendant liable only for his or her actual percentage of fault as determined by a judge or jury.
“…where liability is attributed to more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of that defendant’s liability to the amount of liability attributed to all defendants and other persons to whom liability is apportioned….” 42 Pa.C.S.A. §7102(a)(1).
THERE ARE FIVE EXCEPTIONS TO THE NEW REQUIREMENT:
1. Intentional misrepresentations.
THE NEW 60% THRESHOLD
The major exception is that if a defendant is held to be 60% or more at fault, then he or she can be held responsible for the entire award.
Although it is true that some states enacted similar threshold rules, even the most business friendly states still only require that a defendant be 50% or more at fault before being required to pay the entire verdict. Pennsylvania has now surpassed those front runners.
Further, Section (a.2), of the Statute permits apportionment of responsibility not just among defendants but also among “non-parties.” However, the language that follows in that paragraph seems to describe non-parties only as other persons who have entered into a release with the plaintiff in respect to the action but have not been made parties to the action. The statute further states that this information (about settling non-parties) shall be transmitted to the trier of fact “upon appropriate requests and proofs” by any party. This language is ripe for judicial interpretation. Is a non-party only a person who settled prior to being sued; was sued in the cause of action and entered into a settlement or could it possibly involve persons or entities who were never brought into the case to begin with but could possibly have been?
Section (a.2) also states that nothing in this section shall affect the admissibility or non admissibility of evidence regarding releases, settlements, offers to compromise or compromises as set forth in the Pennsylvania Rules of Evidence. (Pa.R.E. 408 and 42 Pa. C.S.A. §6141). What does this mean? Under the Pennsylvania Rules of Evidence, releases, settlements, offers to compromise or compromises are generally not admissible at trial. How does this affect the new Act 17 statutory language which permits any party “on appropriate request and proofs” to transmit to the trier of facts so that an apportionment can be made. Does that mean that a jury will be provided information as to how much a non-party settling defendant paid or just merely the fact that a non-settling entity paid something? Will a jury then lean more toward the plaintiff or more toward the defendant?
The effect of the new law can be illustrated by a simple example: Two defendants involved in an automobile accident combine to cause the injury of a passenger in one of the automobiles. Each driver is found to be 50% at fault. Under the new law, each defendant will have to pay only his “fair share” or one half of the verdict. If the verdict is for one million dollars (think wheel chair bound) and one of the defendants only has $15,000 in coverage but the other defendant has one million dollars in coverage, the plaintiff will only be able to recover $515,000. The victim will be left $485,000 short of that to which a jury determined he was entitled. (Now think wheel chair and incontinent for life). Who is picking up the tab for the other $485,000 needed for her lifetime care? Yes, you guessed it, probably you and your fellow taxpayers. Who will reap the benefit? The insurance companies. But, of course, they will pass those savings on to the public.
MISSING FROM THE ACT
There is no exception for fraud, recklessness or gross negligence or any requirement in a Dram Shop case that the dram shop must have insurance in order for the rule to apply.
There is no exception for other egregious conduct such as illegal sales of alcohol to minors.
POTENTIAL CHANGE IN STRATEGIES FOR BOTH
It is quite possible that more defendants will be sued to increase the total amount of coverage available in order to make up for the deep pocket defendants who are not held 60% or more liable.
Defendants will be more likely to sue each other and point their fingers at each other in order to bring their share below 60%.
The change in the law may be more noticeable in strict liability cases involving crash worthiness actions, asbestos actions and other mass tort type cases where the defendant’s products were a minor portion of the plaintiffs’ overall exposures.
More cases may likely be forced into trial because the plaintiff may now be forced to look at private assets.
Confusion may be created when plaintiff pleads both intentional tort and negligence in the same cause of action.
There may be an increase in underinsured and uninsured motorist claims. Plaintiffs are going to have to file UM/UIM claims more often if there are multiple joint tortfeasors who are found less than 60% responsible for the injured party’s harm.
In medical malpractice cases the new law might make it less likely for plaintiffs to sue marginal parties due to the expense, but the risk of joinder of these parties by other defendants may be enhanced. The plaintiff will always want to ensure that there is at least a 60% liable party with adequate assets while each defendant will want to diminish his likelihood of being responsible for 60%.
What effect will the law have in a case where the plaintiff fractures a leg in an automobile accident and receives medical care but a week or two later, a treating physician is careless and causes additional catastrophic injuries to the plaintiff? Are they joint tortfeasors? Will the 60% rule apply? Before the change in the law, the plaintiff perhaps would have wanted the doctor and the motorist to be jointly and severally liable in order to recover all the damages from the doctor and the hospital. Now plaintiff will argue that they are two separate causes of action.