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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President’s Distinguished…Again!

As this year’s president I am pleased to announce that Greater Issaquah Toastmasters has earned Toastmasters International’s highest recognition – President’s Distinguished – for the sixth straight year.

Every attorney should be a Toastmaster. Bryan Garner agrees.

by Travis Eller

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Man Finds Lump on His Ankle – Has a Seizure a Year Later

A man found a lump on his right ankle causing him minor discomfort. He went to his doctor, who tentatively diagnosed the lump as a benign ganglion cyst, ordered an x-ray of the ankle to ensure no structural defects, referred the man to an orthopedic specialist, and instructed him to follow-up as necessary.

The man had a seizure 13 months later. He died a few years after. The lump had in fact been malignant, which lead to the seizure and death. 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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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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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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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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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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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).