Seattle Personal Injury Attorney

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Person Who Fell on Wet Floor Sign Wins Appeal

Our law firm was not involved in the personal injury lawsuit described in this article.

A customer slipped and fell on a fallen wet floor sign. The trial court dismissed the case on Petsmart’s motion for summary judgment. The Washington Court of Appeals reversed. Read More

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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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Lifestyle Lift Promises – Too Good to be True ?

A 64-year-old certified nurse’s assistant saw TV ads for “Lifestyle Lift” – pitched as relatively quick and painless, unlike traditional cosmetic surgery. She called an 800 number and got a brochure in the mail. Read More

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It’s Not My Job

A long-haul truck driver delivered a trailer to a Lowe’s store. Although she would sometimes open the trailer doors in the loading dock, unloading the trailers was not her job.

On this delivery, when she attempted to open the trailer doors she noticed that the cargo had shifted and some boxes pressed against the doors. She asked a Lowe’s receiving manager for help. She stood back as he opened the trailer doors. They discovered that a nylon rope held up some large boxes near the doors.

The Lowe’s manager started to cut through the rope holding the boxes in place. The truck driver expressed concern because she thought the boxes would fall once he cut through the rope. 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

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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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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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Snow Blind

In the winter of 2009 a near-record six-and-half feet of snow fell in Spokane, Washington.  Snow-plowing created snow berms throughout the city.

Mr. Todd came to an intersection. A large snow berm blocked the view to his left. Mr. Todd stopped, looked both ways, then inched into the intersection to try to see if it was clear. After the front of his vehicle was at least half-way through the intersection he accelerated. He never saw the vehicle that struck him. Read More

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Filing Bankruptcy May End Your Personal Injury Claim

J.B. rear-ended L.L., injuring L.L.  L.L. filed a chapter 7 bankruptcy petition. He failed to list the injury claim as an asset. Later he sued J.B. for the personal injury claim. J.B. moved to dismiss the personal injury claim because L.L. had failed to disclose the injury claim in his bankruptcy. Read More

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Burger King Employee Spits in Sheriff Deputy’s Burger

A Clark County Deputy Sheriff drove his marked police cruiser through the drive-thru of a Burger King in Vancouver, Washington. The deputy ordered a Whopper with cheese and drove away with an uneasy feeling after receiving his burger.

He pulled into another parking lot down the street, lifted the top bun, and observed what appeared to be a glob of spit on the meat patty. He inserted his finger into the glob to confirm it was not fat.

Later DNA testing revealed the saliva belonged to one of the employees working at the time. The employee was charged and pleaded guilty to felony assault and was sentenced to 90 days in jail.

The Deputy sued Burger King, claiming he suffers from ongoing emotional distress, including vomiting, nausea, food aversion, and sleeplessness.

In a 6-3 decision the Washington State Supreme Court held the deputy could pursue a claim for emotional distress.[1]

Under Washington’s Product Liability Act a manufacturer of a product is strictly liable for harm proximately caused by the fact that [a] product was not reasonably safe in construction. The majority noted that Washington courts had  not previously addressed emotional distress damages absent physical injury in the context of a strict liability claim.

The majority looked by analogy to negligence cases. In negligence cases Washington law allows claims for emotional distress in the absence of physical injury only where emotional distress is (1) within the scope of foreseeable harm of the negligent conduct, (2) a reasonable reaction given the circumstances, and (3) manifested by objective symptoms. These requirements were developed to avoid “intolerable and interminable litigation.”

The majority held that these requirements were met.

The dissent concluded that the majority’s reliance on negligence cases is misplaced. The dissent pointed out that the statute is rooted in strict liability. Under prior Washington case law emotional distress damages are available for a statutory cause of action only if the statute so provides or if the statute requires intentional conduct to impose liability. The Washington Products Liability Act does neither.

Overturning an established case law rule in Washington requires a clear showing that an established rule is incorrect and harmful. According to the dissent, ensuring the financial compensation of people claiming emotional distress because they saw spit on their uneaten hamburgers is not a public policy priority.

Nevertheless, the majority held that the WPLA permits relief for emotional distress damages, in the absence of physical injury, caused to the direct purchaser by being served and touching – but not consuming – a contaminated food product, if the emotional distress is a reasonable response and manifested by objective symptomatology.

Or, in plainer non-legalese – the deputy may pursue a lawsuit against Burger King because its employee spit in his burger – even though he never ate any of it.


by Seattle personal injury attorney Travis Eller

Our law firm took no part in this litigation.  

 


[1] Bylsma v. Burger King, unpublished (No. 86912-0, filed January 31, 2013).

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A Lawyer’s Toolbox

A lawyer has but two tools. Those two saws had better be kept sharp.

A lawyer has but two tools. Those two saws had better be kept sharp.

 

A lawyer’s toolbox has but two tools – writing and speaking.

 

A lawyer must know the law and the facts of a client’s case. Thoroughly. Inside and out. But, that is not enough.

 

It does little good to be right. A lawyer must convince others. If the lawyer is not persuasive enough then those others – also known as judges and jurors – will decide the lawyer is wrong, no matter the merits.

 

“So long as advocates think of writing as a frill, or as mere polish to be applied to fact summaries or case briefs, they cannot begin to succeed.”[1]  Bryan Garner – probably the most renowned authority on good legal writing – asserts that “a large percentage of briefs are so poor that judges find them a grave disappointment.”[2]

 

The same can be said – and has been said – about oral argument.

 

“Too many, far too many, lawyers burden courts… with poorly prepared, poorly presented, and thoroughly unhelpful arguments….”

 

“[The thing] that has astonished me most is the number of disappointing arguments to which courts have to listen.”

 

“[T]he law has little place for trained eloquence, and has remarkably few rhetoricians. On many occasions judges themselves have admitted that forensic elocution is a sadly neglected and decaying art. The bar student is under no obligation to make a study of it, and the seasoned practitioner, burdened with other duties, scarcely gives it a thought.”

 

“Chief Judge Lumbard of the Second Circuit, in a recent speech before the New York State Bar, deplored the decline in the performance of the appellate bar, saying that in his experience not more than one out of ten cases is well argued.”

 

But when done well – “Nothing can equal the experience of seeing the great advocates at work in the courts and catching the magic of the spoken word, for it is not so much what is said but the manner in which it is said that matters.”[3]

 

Along with many other pearls of wisdom, Garner encourages lawyers to

  • Develop a clear, strong, pleasant voice;
  • Purge your speech of “ums,” “ers,” and “ahs;”
  • Speak with deliberation and force. Avoid speaking too fast, too loudly, or too quietly;
  • Learn the value of pausing occasionally, at appropriate points.[4]

 

 

One way to develop these skills is to speak at every opportunity. Garner encourages lawyers to speak at every wedding and family reunion – and to join Toastmasters.

 

Indeed, at Toastmasters every week we work on every one of those Garner suggestions, and many more.

 

The work of developing written and oral advocacy skills is never done. A lawyer is “like a natural athlete who takes up a new sport; now all they need to do is learn the sport itself.”[5]

 

Indeed. And, an athlete does not wait until the event itself to hone skills. An athlete trains constantly.

 

The courtroom is game-time. So in the meantime, we should all pad up and hit the practice fields.

- is a personal injury attorney in Washington state.


[1] Girvan Peck, Writing Persuasive Briefs, 7 (Little, Brown & Co. 1984).

[2] Bryan A. Garner, The Winning Brief, preface at xi (2d ed., Oxford U. Press 2004).

[3] For these and many more examples, see Bryan A. Garner, The Winning Oral Argument, 10-13 (Thomson/West 2009).

[4] Bryan A. Garner, The Winning Oral Argument, passim (Thomson/West 2009).

 

[5] Girvan Peck, Writing Persuasive Briefs, 6 (Little, Brown & Co. 1984).

 

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As in Baseball, No Medical Malpractice “Team” Errors

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).