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“Fantastic Service”

“Mr. Eller is always responds in a timely manner and always answers all the questions one may have without making things more complicated…Not all attorneys are the same and trust me, I shopped around and Mr. Eller was not only reasonable but also provided fantastic service. I won’t use any other attorney.”

Actual client comments posted on Yahoo Local 02/17/2007.

Each case presents unique and specific factual and legal circumstances.

Past performance does not guarantee future performance.

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“Do yourself a favor and use [Travis] Scott Eller as your attorney.”

“Do yourself a favor and use [Travis] Scott Eller as your attorney.” Read More

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Dog Enters Woman’s Home and Severely Injures Her

Sue lives in Pierce County with her service dog Misty. Sue often left her sliding glass door open so Misty could come and go with a neighbor’s dog, named Romeo.

Neighbors Shelly and her house-guest owned a pit bull named Betty, and Betty’s mixed-bred offspring, Tank. Betty and Tank were the subjects of several complaints around the neighborhood. Betty, sometimes with and sometimes without Tank, had allegedly menaced neighbors. The dogs on one occasion confronted neighbors in their own yard, so that they could not leave their house for about 90 minutes until animal control agents arrived. On another occasion, Betty chased a child on rollerblades and a neighbor called animal control.

Betty on one occasion chased Misty into Sue’s house, and jumped aggressively at the sliding glass door. Sue called animal control. Betty had left by the time animal control arrived.

One morning Sue awoke to Betty and Tank’s snarling. The dogs had entered through the sliding glass door Sue had left open for the night.  Misty ran out of the bedroom. Betty and Tank jumped on the bed and bit Sue’s left arm. They then attacked Romeo.

Sue tried to protect Romeo. Betty and Tank mauled Sue, and bit both her hands. She was able to separate Romeo in a closet. Meanwhile, the dogs bit Sue’s face, breasts, and hands. Tank forced the closet door open. Betty and Tank then killed Romeo.

Sue left the house and called 911. Eventually, each dog was euthanized. The dog’s owners plead guilty to criminal charges and admitted civil liability.

Pierce County denied liability and the case against Pierce County went to a jury trial. The jury found Pierce County 42 percent at fault, the dog owner 52 percent at fault, and Sue 1 percent at fault.

Pierce County appealed, arguing it was not liable because it owed no duty to protect Sue from a neighbor’s dog. Sue appealed the one-percent fault against her.

Under the public duty doctrine, Pierce County does not owe the general public a duty of care, and can only be liable if there is a duty owed to Sue individually. The Court of Appeals held that the failure to enforce exception applied, and because of language in a Pierce County ordinance mandating that the County “shall classify potentially dangerous dogs” under circumstances such as in this case.

The Court of Appeals also upheld the one-percent fault the jury imposed on Sue. The jury could so find based on the evidence presented that Sue left the sliding glass door open all night despite previous encounters with Betty trying aggressively to enter through it, and in trying to save Romeo despite the dogs having already bitten her left arm.[1]

By personal injury attorney Travis Scott Eller

lawblog disclaimer

 

 

[1] Gorman v. Pierce County, ____ Wn.App. ____ (No. 42594-7-II  August 13, 2013).

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Heavy Metal Hairdresser

A hairdresser went to a heavy metal concert featuring a band called “Spiderface.” Spiderface uses fake blood. The hairdresser slipped and fell in the fake blood. She broke her ankle, and was unable to work for months. Read More

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Toastmasters Speak-a-Thon

I gave a 15-minute excerpt from a generic personal injury closing argument in my advanced Toastmasters club’s recent speak-a-thon. I also gave an evaluation of another speaker’s presentation.994665_10202612604779016_1913691667_n

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Suing John Doe

A tenant filed a personal injury lawsuit against his landlords one day before the statute of limitations was to run. The complaint named the landlord and “John Does 1-20,” but did not name the owners of the property, or describe facts that would make it clear the tenant intended to name the owner as well as the landlord.

Later, the tenant’s attorney attempted to add the owners of the property (which were not the same persons as the tenant’s landlord).  The statute of limitations had run in the meantime. The trial court granted the owners’ motion to dismiss. The tenant appealed.[1]

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Not in the Dictionary

A doctor misdiagnosed a woman’s ectopic pregnancy and removed the wrong Fallopian tube. The woman later had the other Fallopian tube removed in a second surgery. She sued. The jury returned a verdict of $71,795.53.

When the jury deliberated one juror looked up the word “negligence” in a dictionary (even though it is properly defined in the judge’s jury instructions) and reported the dictionary definition to other jurors. The judge granted the defense motion for a new trial. The woman appealed.[1]

lawblog disclaimer

The Court of Appeals agreed with the trial judge. The Court noted an earlier Washington Supreme Court decision in which essentially the same thing had happened. In that case, a jury looked up a legal term, and even used a legal dictionary. The dictionary definition differed from Washington law, so the court ordered a new trial. The Supreme Court upheld the result.

Perhaps the woman’s attorney in closing argument went over the definition of “negligence” in the judge’s instructions. In any event, these cases illustrate the vital importance of explaining the judge’s instructions in plain English in closing argument, “one of the more important tasks in closing.”[2]



[1] Cutuk v. Bray, unpublished (No. 68406-0-1, October 28, 2013). Available at http://www.courts.wa.gov/opinions/pdf/684060.pdf (last accessed 11/11/2013.)

[2] Ball, David, David Ball on Damages §8-10 (3rd ed., NITA 2011).

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As in Baseball, No Medical Malpractice “Team” Errors

The Court of Appeals ruling discussed in the post was later overturned by the Washington State Supreme Court.

 

The Washington Court of Appeals recently upheld the trial court in finding that in Washington medical malpractice law – as in baseball – there is no such thing as a “team” error.[1]

A man underwent a six-hour heart surgery. Later he developed compartment syndrome – a known and serious, if rare, complication from long surgery. The compartment syndrome was not initially diagnosed, and by the time discovered had caused extensive and permanent damage to the man’s leg, including death of muscle tissue.

The man sued the hospital for alleged failure to timely diagnose compartment syndrome.

At trial both sides produced experts who testified that the man was attended to post-surgery using a “team” approach. The surgeons and the physician assistants made rounds together twice per day. In the team approach, multiple surgeons see the patient post-surgery, regardless of who is primarily in charge.

According to the hospital, at any time a patient needs assistance the physician seeing the patient is well-aware of what’s going on. “So we basically assume everybody is our patient.” The hospital witness testified that the “team” “evaluate[s] patients in such a way that everybody gets a chance to have input.”

The patient’s expert testified that the care fell below the standard of care because of a lack of proper monitoring and a failure to rule out a known possible complication after surgery. When asked whom he was criticizing, the patient’s expert admitted that he “was not certain entirely as to who was to blame” but blamed the surgeon of record, even though the surgeon of record “wasn’t necessarily in charge of this patient at the time that the diagnosis was made.”  In fact, the surgeon of record was on the other side of the country post-surgery – and therefore was not supervising the “team.”

The patient failed to produce evidence of any particular person failing to meet the standard of care for their particular field of expertise. Instead, his attorney argued that the surgeon of record was negligent as team leader, and therefore the hospital was liable, too.

The trial judge explained in his ruling that “a team isn’t negligent,” and instead there needed “to be a negligent player on the team.” The patient’s attorneys having failed to produce proof of a negligent player on the team, the judge overturned the $583,000 jury verdict.

The Court of Appeals agreed with the trial judge, and upheld the result.

Medical malpractice is harder than it looks. Even when there are terrible results from medical care, the patient must prove that a particular health care provider breach the standard of care in their field of expertise, and that this breach of the standard of care caused the terrible result.

lawblog disclaimer

By personal injury attorney Travis Eller



[1] Grove v. Peacehealth St. Joseph Hospital, ___ Wn. App. ____ (No. 69556-8-1, October , 2013). Available at http://www.courts.wa.gov/opinions/pdf/69556-8.pdf. (Last accessed 11/04/13).

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No Bond, No Trial

A resident of Turkey was injured in Washington while on a bicycle. He sued the Washington driver. The injured bicyclist got only a small award in arbitration, so he appealed and was given a trial date for a jury trial. The bicyclist then relocated back to Turkey indefinitely. When he failed to post a bond, the trial court dismissed his personal injury claim. He appealed. The Court of Appeals affirmed.

lawblog disclaimer

Because he appealed a mandatory arbitration award, the injured bicyclist was subject to paying attorney fees and costs unless he got a better award at trial. The bicyclist was out of the country, and did not know when he might return to Washington – making collecting on the potential fees and costs award difficult. Therefore, the trial court granted a defense motion for a bond, and ordered it be paid within 90 days. When that did not happen, the trial court dismissed the case. With the case dismissed, the injured bicyclist obviously did not improve the arbitration result, and the trial court awarded fees and costs of $8,755.

The Court of Appeals upheld the trial court, and also awarded additional fees for the appeal.[1]

As noted above, this was not one of our cases.

If you have been injured and would like a free personal injury cases analysis, please contact our firm.

By personal injury attorney Travis Eller



[1] Saylik v. Walker, unpublished (67951-1-I, September 23, 2013). Available at https://www.courts.wa.gov/opinions/pdf/679511.pdf (last accessed 10/13/13).

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Drunk Jaywalker Wins on Appeal

A drunk 70-year-old jaywalker sued the driver of a car who hit him. The jaywalker chose a poorly lit stretch of multi-lane highway to cross in the dark. Although testimony conflicted, it either was or had recently been raining. The driver who hit the jaywalking pedestrian never saw him. Read More

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Elderly Woman Dies from Fall in Puddle of Water

An elderly woman fell in a puddle of water near an elevator in a hospital. She was taken to the ER, treated for a dislocated shoulder, and released. Family members found her unconscious the next morning. She died less than a week later from intracranial bleeding. Read More

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Woman Falls, Sues Walmart

A woman fell in water about fifteen feet from the checkout in a Walmart store. She was injured. She sued. The trial court dismissed. She appealed.[1]  Read More