(844) 815-9632

duty

Can You Sue a Gym for Faulty Equipment?

Americans love the gym. Whether we miss the activity and exercise from recess and gym class in school or we're wistful for the waistline from our younger days, millions of us are spending millions of hours in the gym and millions of dollars on gym memberships. And we expect that gyms will show the same dedication to their equipment -- buying the best and maintaining equipment in the best condition. But what happens when that doesn't happen? Are gyms liable for injuries caused by faulty equipment? Waive Goodbye? Like any other business, gyms have a duty to keep their patrons safe. But, when it comes to lawsuits regarding a gym's equipment, that liability can be complicated by a couple of factors. The first hurdle to a lawsuit may be a liability waiver, if you signed one. Many, if not all gyms require members to waive injury liability, and whether that waiver will prevent you from filing an injury lawsuit will depend on the terms of the agreement. Some liability waivers only bar lawsuits based on gym or employee negligence, and are generally upheld in court. Other waivers attempt to provide total immunity for gyms, but can be found unenforceable if they're too broad. A gym's waiver may attempt to limit liability for equipment-related injuries, but may not cover instances where the gym failed to maintain the equipment properly, or knew the equipment was faulty and failed to fix it. Gym Defects Certain equipment, like treadmills, can be inherently dangerous. And some equipment may have been designed or manufactured poorly or lack adequate warnings regarding its proper use. Gym equipment manufacturers have a duty to ensure their products are safe, and may be strictly liable if a person is injured using on their product. Product liability claims against gym equipment manufacturers can be based on: Defects in Design: The gym equipment's design is flawed making it unreasonably dangerous to users; Defects in Manufacturing: The equipment was improperly manufactured, dangerously departing from the intended design; or Defects in Warnings: The equipment lacks adequate instructions or warnings, rendering the product unreasonably dangerous. While equipment manufacturers can be liable for defects in their products, gyms may also be liable if they knew the equipment was dangerous and did not fix or remove it. If you've been injured at the gym and think a faulty piece of equipment was to blame, contact an experienced personal injury attorney near you. Related Resources: Injured in an accident? Get your claim reviewed by an attorney for free. (Consumer Injury) Top 5 Legal Tips for Gym Injuries (FindLaw's Injured) Treadmill Accident Leads to Brain Injury Lawsuit (FindLaw's Injured) Gym-aholics Be Warned: LA Fitness Wins Injury Lawsuit With Liability Waiver (FindLaw's Injured)
continue reading

Easter Egg Hunt Injury Lawsuit: Mom Sues for $112K

The Clakamas County annual Easter Eggstravaganza egg hunt is scheduled to proceed this year with 20,000 eggs, and the Easter bunny being flown in by Helicopter, just like tradition dictates. However, a recent lawsuit for $112,000 filed against the Eggstravaganza venue and organizer as a result of an injury that occurred last year is attracting attention in the lead up to this year’s event. Although the event is geared towards participants under 12, last year, an adult who was accompanying their child was injured when the crowd rushed in, knocking her over, causing her a severe knee injury. The injury required surgery and a protracted recovery. The lawsuit alleges that the venue and organizer were negligent in not providing sufficient staff, security, and/or crowd control to ensure the safety of attendees. Event Organizer and Venue Liability The organizers of an event, as well as the venue where an event takes place, can both be held liable if an event attendee is injured as a result of negligence, such as poor property conditions, or allowing overcrowding to occur. Generally, organizers and venues are responsible for ensuring the safety of their guests, and must take reasonable steps to do so. When reasonable steps are not taken, organizers and venue owners can be sued under a legal theory of negligence or premises liability. In the Eggstravaganza case, for instance, the plaintiff is alleging that the organizers and venue allowed overcrowding to occur, and did not have effective crowd control. The complaint explains that this was case, particularly, when people who were not supposed to be on the Easter egg field, ran onto the field and knocked the plaintiff over, causing her injury. Eggshell Plaintiffs An injury victim can sometimes seem to have a disproportionately large injury given the circumstances surrounding an accident or event. However, under the law, a person with a pre-existing condition, or a high-susceptibility to injury, is entitled to recover for the full extent of their injuries. In lawyer-talk, these types of individuals are often referred to as eggshell plaintiffs, and can include the elderly, disabled, or those with medical conditions. Related Resources: Injured in an accident? Get matched with a local attorney. (Consumer Injury) 3 Easter Injuries to Avoid (FindLaw’s Injured) Is It Legal to Dye Baby Chickens? (FindLaw’s Law and Daily Life) First Grader Handcuffed After Easter Egg Tantrum (FindLaw Blotter)
continue reading

When to Sue a Pediatrician for Malpractice

There are fewer malpractice claims against pediatricians than any other specialty, according to a recent study. But that same study concluded that a higher percentage of pediatric claims went to trial. Perhaps that's because, pediatricians are tasked with providing medical care for our children, and their mistakes, though few, can be especially tragic. Here's what you need to know about pediatric care and the possibility of medical malpractice lawsuits. Malpractice Elements Doctors, like anyone else, can be held liable for injuries they cause. And while state laws may vary, most medical malpractice lawsuits are premised on four main elements: Duty: Pediatricians owe their patients a duty of care, to diagnose and treat ailments to the same ability of other pediatricians. Breach: They can breach that duty by failing to meet the standard of care, such as by misdiagnosing or mistreating their child patients. Causation: A child patient can be injured as the result of a pediatrician's breach of duty, and in court they must prove these injuries were the fault of the pediatrician, and not something else, and that the pediatrician could or should have foreseen those injuries. Damages: The child patient's injuries, like medical expenses, emotional distress, or other harm must be compensable by money damages in order to recover in court. If all of these elements are found, you likely have a strong claim for pediatric malpractice, though proving each element of a case can be complicated. Pediatrician Malpractice Claims A pediatrician could be liable for medical malpractice for failing to diagnose an illness or medical issue, for misdiagnosing an ailment, or for prescribing the wrong treatment. Pediatricians could also be held liable for the negligent prescription of a medication or medical devices if they ignored the manufacturer's instructions, or prescribe an incorrect medication or dosage. To find out if you can sue a pediatrician for malpractice, you may want to consult an experienced personal injury attorney. Related Resources: Does your child have an injury claim? Get matched with a local attorney. (Consumer Injury) 5 Signs You May Need a Medical Malpractice Attorney (FindLaw's Injured) Top Reasons Doctors Get Sued for Malpractice (FindLaw's Injured) Should Doctors Have to Tell Patients If They're on Probation? (FindLaw's Injured)
continue reading

Top 5 Travel Injury Legal Issues

It’s almost summertime, so time to hit the road, see the sights, and travel the high seas. But with travels come trouble sometimes, accidents and injuries, which could be costly. Here is some advice for travelers, whatever your mode of transport, be it trains, planes, automobiles, boats, or a combo. Find out how to handle travel accident recovery. Travel Accident Recovery 1. Injured on an Airplane: How Can You Recover? You probably don’t realize just how treacherous being on a plane is, and that is apart from the hazard of hurtling through the skies. Injuries on airplanes can happen due to fallen luggage from overhead compartments, turbulence, airline employee error and more. Airlines owe passengers a high duty of care and passengers do recover when they are proven negligent. 2. Injured in a Bus Crash: How Much Is My Case Worth? It is never a good idea to guess at what a case is worth without knowing all the details, and even then it’s probably best not to assume. But bus crash injuries can be severe and you can certainly sue if you are hurt while traveling on this type of common carrier. 3. Can I Sue for a Railroad Crossing Accident? If you’re on a train that crashes or are injured in some way while traveling Orient Express style, you can certainly sue to recover for your expenses and pain and suffering. As for drivers injured in a railroad crossing accident, that too is an unfortunately common occurrence and a basis for recovery. 4. Cruise Ship Injury: Can I Sue? Traveling on a cruise ship combines the fun of staying at a hotel with the thrill of being on the high seas and a dash of the old-fashioned. But cruise ships are also a prime place to get injured — not only are there activities of all kinds but there’s the risk of accidents in restaurants, on decks, and with the movement of the ship itself. If your vacation ends in a sea of sorrows due to the negligence of the cruise ship company, you can sue. 5. Road Trip Safety Tips: How to Not Get Injured The most American vacation of them all is the road trip, a journey great artists have paid tribute to in books, film, music, and more. But before you hit the road, know the score on staying safe. Traveling in a car for long hours can be dangerous. Talk to a Lawyer If you are injured during your travels or at any other time and you believe it is due to the negligence of another, speak to a lawyer. Tell your story. Many attorneys consult for free or a minimal fee and will be happy to assess your case. Related Resources: Have an injury claim? Get your claim reviewed for free. (Consumer Injury) Cruise Ship Sickness: Can Passengers Sue? (FindLaw’s Injured) Cruise Ship Injuries: What Are Your Rights? (FindLaw’s Injured) Top Ten Road Trip Legal Tips (FindLaw’s Law and Daily Life)
continue reading

How Do You Prove Soft Tissue Injury?

This is another in our series on car accident claims. So many of us experience an accident, but do we really know what do to, how to get help, or what our rights are? This series can help. Soft tissue injuries are like feelings — they’re real and they hurt but they can be invisible and not everyone believes in them. For these reasons, proving this kind of injury can be difficult, or more difficult than a more obvious type of harm, like a broken leg. Still, people do recover legal remedies for soft tissue injuries every day, so it is not at all impossible to get compensation for your damages after an accident. Let’s look at proving negligence in the context of this type of claim. Soft Tissue Injury Soft tissue injury refers to damage to soft areas of the body, like ligaments, muscles, and tendons. A hard tissue injury, by contrast, refers to a broken bone or damage to a hard area of the body. While a soft tissue injury can seem less traumatic on the surface — who wouldn’t prefer a strain to a break? — this kind of harm can last a long time and cause discomfort and make everyday duties difficult. Sprains, strains, and contusions in soft tissue do not always manifest immediately after an accident but the pain can last for years, which is why people seek to recover damages for their invisible injuries. Proving Negligence In brief, negligence is proven by showing that a person who owed you a duty of care fell below the standard required and breached that duty. If this breach is the cause of your injury and you suffer compensable damages, then you can recover for medical expenses, pain and suffering, lost wages, and more. But how do you prove you are truly sore if your injury is invisible? You will need to show medical records, evidence of having sought treatment and received a diagnosis. You can also support the claim with testimony, or affidavits. You may ask people who know you to speak about your limited mobility since the accident. You may also seek expert testimony to support your claim and explain to jurors the significance of your injury. A medical expert may testify about soft tissue injuries at trial, so that the jury better understands the harm in the way the medical community does. Although proving soft tissue injury may be more difficult than proving a broken leg, these types of claims are very common after car accidents. The force a vehicle exerts during a crash can cause a lot of damage to the human body, some of which may not register immediately. Whiplash The most common soft tissue injury is whiplash, officially known as cervical strain or sprain, or hyper-extension injury. As the official names indicate, whiplash happens when the body is strained or overextended in some way, causing damage. Whiplash is interesting because it illustrates the mysterious nature of soft tissue injury, and how dangerous this damage can be. Sometimes whiplash isn’t felt immediately after the accident but over time can manifest in stiffness, neck pain, back problems, and most alarmingly, cognitive issues. Injured? If you have been in a car accident and experienced an injury of any kind, speak to a lawyer. Many personal injury attorneys consult for free or a minimal fee and will be happy to assess your case. Related Resources: Injured in a car accident? Get your claim reviewed by an attorney for free. (Consumer Injury) Types of Brain Injury (FindLaw’s Learn About the Law) Can I Get Compensation for Whiplash? (FindLaw’s Injured) Types of Car Accident Injuries (FindLaw’s Learn About the Law)
continue reading

Types of Witnesses Involved in Personal Injury Cases

Personal injury cases are complex and can involve both expert and lay witnesses. These people will help to prove your case and corroborate your claims. Depending on the details of your case and the specifics of your claim, you may have a few or many witnesses, just laypeople or only experts, or both. Let's look at how the different types of witnesses help you prove a case. Lay Witnesses Negligence cases are proven by showing that someone who owed you a duty of care breached that duty and caused your injury, resulting in compensable damages. That means you as the plaintiff must establish what happened. One way you do that is by gathering evidence from anyone who was at the scene of the incident in question. Lay witnesses are people who have no particular expertise associated with the claim other than the fact they saw something relevant, whether at the scene of the incident or with respect to your injury and treatment. There are two types of lay witnesses that you might employ in a negligence case -- witnesses who saw what happened can testify about the accident and those who know you personally and observed you while injured can discuss that. The testimony of these two types of witnesses provides added support to the things you say. Expert Witnesses There are different types of expert witnesses, too. Depending on the type of case, you may need an expert to talk about engineering, or medicine, or the climate, or soil erosion or pretty much any other complex topic that is implicated in the case. Courts must certify a witness as an expert and who qualifies, as well as the procedure, is dictated by the rules of evidence. Most often, although not exclusively, the experts called upon in negligence cases are doctors, and they testify about the extent of injury, the appropriate treatment now and in the future, and more. Expert witnesses can be quite expensive, charging not only to compile reports that support your claim but also to come in to court and testify in person. But that doesn't mean you don't need them. Talk to a Lawyer If you were injured speak to a lawyer. Tell your story and let counsel worry about what witnesses to call and even how to pay them. Many personal injury attorneys consult for free or a minimal fee and will be happy to discuss your situation, and many also take cases on contingency which means you will only pay legal fees if you recover damages. Get help. Related Resources: Have an injury claim? Get your claim reviewed for free. (Consumer Injury) What Is a Subpoena? (FindLaw's Learn About the Law) In the Courtroom: Who Does What? (FindLaw's Learn About the Law) Do's and Don'ts -- Being a Witness (FindLaw's Learn About the Law) What Happens at Trial? (FindLaw's Learn About
continue reading

Can I Sue for Snowball Injuries or Property Damage?

You’re dreaming of a white Christmas and everything that entails, like sledding, skating, and snowballs. But what if someone breaks a window, or worse, a skull, in a snowball fight? Rest assured, you can sue if you are injured due to someone’s negligence. Also, you can be sued for any damage you cause to a person or property with a snowball or otherwise. The elements of negligence are always the same, regardless of how injury occurs. So before the eggnog flows and you traipse out into the snow, let’s look at negligence in a nutshell. Negligence Explained To succeed in a negligence suit, a plaintiff must prove that the defendant owed them a duty of care, breached that duty, and caused a harm for which there are compensable damages. In the context of a snowball fight, you assume some risk of injury, so it may be challenging to prove a suit. Still, you can do it. A friend can be negligent. Say, your friend packs a rock in a snowball and hits you in the head, causing brain damage. You thought you’d be tossing soft puffs that disintegrate in a shower of flakes, not lobbing deadly projectiles. In that case, you can certainly make a negligence claim and expect to be awarded compensation for expenses associated with your injuries. Similarly, if you hit a person or property, you can be liable for injury. A plaintiff who can show duty, breach, causation, and harm will succeed in a negligence claim, whether or not they have agreed to join the fun. A Snowball’s Chance in Hell Snowball lawsuits have been filed before but make sure you can back a claim if you do sue. In 2010, a snowball fight after a Seattle Seahawks game became the subject of a suit. The plaintiff claimed emotional distress about the flakey fracas. But there was footage showing everyone having a good time. Speak to a Lawyer If you are injured in the snow this winter, see a doctor and speak to a lawyer. You may have a negligence claim. Let a lawyer assess your case; many attorneys do not charge for an initial consultation. Related Resources: Have an injury claim? Get your claim reviewed for free. (Consumer Injury) Negligence Background (FindLaw) Defenses to Negligence Claims (FindLaw)
continue reading

Legal Malpractice or Just Bad Lawyering?

A lawyer is an administrator, counselor, clerk, earpiece and voice, sword and shield. It's a lot to ask and not everyone does every aspect of the job just right. Sadly, there are bad lawyers. But that does not mean that they are committing legal malpractice or that you can sue an attorney when a case doesn't go as hoped. Lawyers do not guarantee results. They are, however, bound by the law, ethical rules, and standards of practice. And when they violate the codes of conduct that govern the legal profession, then a malpractice suit is in order. Legal Training and Standards The American Bar Association's (ABA) Rules of Professional Conduct have been adopted by all states but California. All licensed lawyers swear under oath to follow these codes, as well as the law and professional standards, after passing a rigorous exam ("the bar") and graduating from law school. This long process exists in part to drill certain ideas into lawyer's heads. They can't mix their money with client funds -- that is called co-mingling -- and they must work to vigorously represent client interests while remaining within the bounds of the law. If a lawyer has an undisclosed conflict of interest, that can be a basis for a malpractice suit. Breach of contract is another malpractice basis, as are violations of the ABA's codes. Failure to maintain the professional standards when it harms a client is a basis for a negligence claim. Negligent Lawyering Negligence is a basis for a claim whenever a person or entity who owes a duty of care breaches that duty and causes compensable harm. To prove legal malpractice, you must show the following four elements: The lawyer owed you a duty to provide competent and skillful representation. The lawyer breached that duty by acting carelessly or by making a mistake. The lawyer's breach was the cause of an injury or harm. That injury or harm resulted in financial damages. Have a Claim? The rules of professional conduct are many, and lawyers must follow them all. If you believe you have a malpractice claim, speak to an attorney and get your claim assessed. Related Resources: Browse Legal Malpractice Lawyers by Location (FindLaw Directory) Legal Malpractice Claims (FindLaw) Legal Malpractice Lawsuit FAQ (FindLaw)
continue reading

Tips for Defending Against a Frivolous Injury Lawsuit

You have been served with an injury lawsuit and from your point of view, it is a frivolous claim. But you still have to defend yourself. So how do you do that? Let’s take a quick look at negligence and how you defend it by negating the elements of the claim. Negligence, in Brief The elements of negligence are duty, breach, causation and harm (or injury). To defend against a claim of personal injury, you will have to negate an element of negligence. In brief, the plaintiff will argue that you owed them a duty of care, that you breached that duty, and that the breach caused a harm or injury which is compensable. Damages are only awarded if all of that can be shown. For the defendant, only one element must be disproven to defeat the case. How to Negate the Elements of the Frivolous Claim You need not negate every element and some might be impossible to disprove. Duty of care, for example, may be difficult to disapprove as the duty arises from a relationship — personal, professional, service, or other — and is likely the basis for your being named in the claim. Still, you might argue that you owed the plaintiff no duty of care. Whether that is plausible depends on the details of the case. If the person injured had only the most tangential relationship to you, perhaps you owed them no duty. A more likely argument is that you did not breach the duty of care. Even if you were in some sort of relationship with the plaintiff, you can still argue that you behaved as a reasonable person would under same or similar circumstances. In other words, you owed a duty and did not breach it. If you can show no breach, you have already succeeded — you cannot be held liable for an injury if you behaved as a reasonable person would under same or similar circumstances. The same principles apply to causation and harm. The plaintiff argues you caused the harm. You try to show that there were intervening causes that were not foreseeable or that you just did not cause it at all. Finally, you might argue that there was no injury or that the injury is not as severe as the plaintiff argues and that the damages sought far exceed actual harm. Talk to a Lawyer There is really no way around this. You need a lawyer. Although the injury claim may seem frivolous to you, lawsuits involve a lot of paperwork and deadlines and administration. You do not want to defend yourself alone and you should not try. If paying for defense counsel seems prohibitive, just contemplate paying damages. Plaintiffs Too The same advice goes for plaintiffs. You need representation. If you have been injured, consult with a personal injury attorney who will assess your claim for free. Related Resources: Have an injury claim? Get your claim reviewed for free. (Consumer Injury) Meeting With an Injury Attorney (FindLaw) Fact Finding and Discovery (Findlaw)
continue reading

Can You Sue for a Misdiagnosis?

Every year, 12 million adults in the United States are misdiagnosed by doctors. That’s 1 in 20 patients. In a recent shocking case, Dr. Farid Fata plead guilty to misdiagnosing health patients with cancer. He tortured more than 500 patients with unnecessary chemotherapy treatments and took millions of dollars from the government in false Medicare claims. A few of his patients even died. If a doctor misdiagnosed you, can you sue? Common Misdiagnoses With 1 in 20 patients misdiagnosed, doctors actually have a pretty good 95 percent success rate. However, a misdiagnosis could mean an illness goes untreated for too long, or a patient must suffer through unnecessary treatments. Here are some commonly misdiagnosed illnesses: Asthma — Misdiagnosed as recurring bronchitis Heart Attack — Misdiagnosed as indigestion, panic attack Lyme disease — Misdiagnosed as the flu, depression, or mononucleosis Parkinson’s — Misdiagnosed as Alzheimer’s, stroke, or stress Lupus — Misdiagnosed as chronic fatigue syndrome, fibromyalgia, or rheumatoid arthritis Suing for Negligence In most medical malpractice claims for misdiagnoses, you’d probably be suing for negligence. To claim negligence you’d have to show: Duty — Did the doctor have a duty to care for you? Normally, when there is a doctor patient relationship, the doctor has a duty to act as a reasonably competent doctor. Breach — Did the doctor breach the duty? Just because a doctor misdiagnosed an illness, doesn’t necessarily mean he was acting negligently. To show breach of duty, you’d have to be able to prove that a different reasonably competent doctor would have been able to diagnose the illness properly Causation - Did the doctor’s misdiagnoses actually cause you harm? Your doctor may have misdiagnose you with cancer instead of the flu, but the next day someone ran you over killing you. The doctor’s misdiagnoses was not the cause of your injury. Damages — Did the misdiagnoses cause you damages? The doctor may have misdiagnosed you with migraines instead of a flu. However, he prescribed you Tylenol, which helped cure your flu as well. This means you didn’t suffer any damages because of the misdiagnosis. Proving a medical malpractice claim is complex requiring expert testimony and lengthy litigation. If your doctor misdiagnosed you and caused you harm, consult with an experienced personal injury attorney for help. Related Resources: Have an injury claim? Get your claim reviewed for free. (Consumer Injury) Patients give horror stories as cancer doctor gets 45 years (CNN) Botched Vasectomy: Parents Sue Doctor for $650K to Raise Child (FindLaw’s Legal Grounds) What is Medical Malpractice? What is Not? (FindLaw’s Injured)
continue reading
12