Seattle Personal Injury Attorney http://www.theseattleinjuryattorney.com 206-801-1188 Thu, 16 Feb 2017 18:10:24 +0000 en-US hourly 1 https://wordpress.org/?v=4.8.2 http://www.theseattleinjuryattorney.com/wp-content/uploads/2014/04/cropped-eller-law-firm-logo-bus-card-32x32.png Seattle Personal Injury Attorney http://www.theseattleinjuryattorney.com 32 32 Filing Bankruptcy May End Your Personal Injury Claim http://www.theseattleinjuryattorney.com/filing-bankruptcy-may-end-your-personal-injury-claim/ Sun, 10 Feb 2013 19:23:18 +0000 http://www.theseattleinjuryattorney.com/?p=2848 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. L.L. responded by filing a […]

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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.

L.L. responded by filing a motion in bankruptcy court to reopen the bankruptcy, but never moved to substitute the bankruptcy trustee as the party-in-interest in the personal injury case.

The trial court granted J.B.’s motion and dismissed the personal injury claim.

lawblog disclaimer

 

The Washington Court of Appeals affirmed the dismissal in an unpublished opinion. [1]

 

Washington law is clear that it is inconsistent to fail to disclose a potential lawsuit in a bankruptcy proceeding, and then attempt to pursue the suit after discharge.

 

L.L. argued that his failure to disclose was the result of “unclear, vague, and ambiguous” bankruptcy schedules. The Court of Appeals noted that even pro se petitioners have a duty to carefully schedule assets when filing for bankruptcy. The Court rejected L.L.’s  argument that any failure to disclose was inadvertent.

Generally, “intent to mislead is not an element of judicial estoppel,” and “‘the debtor’s failure to satisfy its statutory disclosure duty is ‘inadvertent’ only when, in general, the debtor either lacks knowledge . . . or has no motive for their concealment.” L.L. knew about his neck, back, and shoulder injuries the day of his car was rear-ended while he was stopped. He also had an apparent motive to conceal the claim since it would shield any potential proceeds from his creditors.

The bottom line – in Washington if you fail to disclose your personal injury claim in bankruptcy you may find you have no personal injury claim.

This article is not a substitute for legal advice. Contact our personal injury attorney for advice on how your bankruptcy filing may affect your injury claim.

by Seattle personal injury attorney Travis Eller

Our law firm took no part in this litigation.

 



[1] Larsen v. Burzotta, unpublished (No. 67447-1-I, filed August 06, 2012).

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But Do You Swear it was Malpractice? http://www.theseattleinjuryattorney.com/but-do-you-swear-it-was-malpractice/ Tue, 30 Apr 2013 12:36:22 +0000 http://www.theseattleinjuryattorney.com/?p=2929   John Doe goes to the dentist. The dentist does a lot of work on John’s teeth. Later John goes to a second dentist. The second dentist concludes the first dentist did some work wrong, and now John needs some corrective work done. The first dentist issues a partial refund of fees, but John sues […]

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John Doe goes to the dentist. The dentist does a lot of work on John’s teeth.

Later John goes to a second dentist. The second dentist concludes the first dentist did some work wrong, and now John needs some corrective work done.

The first dentist issues a partial refund of fees, but John sues anyway.

These are essentially the facts in a recent Court of Appeals decision.[1]  The Court of Appeals upheld a dismissal on summary judgment. Here is why.

The first dentist alleged that the last possible date negligent work was done – if any – was March 15, 2007. The last day he saw the patient, though, was March 29. The case was filed after the statute of limitations ran on the March 15 date, but before it ran on the March 29 date.

So, to avoid dismissal the patient had to show some evidence that there was negligent work done on the March 29 visit. Otherwise, the statute of limitations had run out.

The patient’s attorney presented a document from the second dentist expressing an opinion that on the final March 29 visit the first dentist should have discovered the previous error, and that the failure to discover the previous error was medical negligence. 

Unfortunately, the patient’s attorney did not get this statement in the form of a declaration under penalty of perjury. Because the statement was unsworn, it was ruled not admissible as evidence. 

Perhaps if the statement had been sworn the case would have proceeded to trial. Perhaps we will never know, because the Court of Appeals agreed with the trial court that the unsworn statement was not proper evidence.

The dismissal was upheld.

lawblog disclaimer

 

 

By personal injury attorney Travis Eller

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Lost Chance for a Better Outcome http://www.theseattleinjuryattorney.com/lost-chance-for-a-better-outcome/ Sat, 02 Mar 2013 15:13:07 +0000 http://www.theseattleinjuryattorney.com/?p=2882 Suppose because of medical negligence the patient’s chances of survival – or other better outcome – are significantly reduced, but perhaps still less than even. The doctors might argue that even though they were negligent, their negligence did not cause the patient’s death.    That argument fails in Washington. Washington courts recognize the cause of […]

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Suppose because of medical negligence the patient’s chances of survival – or other better outcome – are significantly reduced, but perhaps still less than even. The doctors might argue that even though they were negligent, their negligence did not cause the patient’s death. 

 

That argument fails in Washington. Washington courts recognize the cause of action for lost chance for a better outcome.

 

“To decide otherwise would be a blanket release from liability for doctors

and hospitals any time there was less than a 50 percent chance of

survival, regardless of how flagrant the negligence.”[1]

 

A loss of chance claim applies not only to loss of a better outcome in a wrongful death action, but also where the result of the harm is short of death.[2]

 

 

Examples where Washington courts have applied the doctrine of lost chance of a better outcome include:

 

  • The estate presented evidence showing that if the lung cancer had been timely diagnosed, the possibility of a 5-year survival was 39 percent, but by the time the decedent was the estate presented evidence showing that if the lung cancer had been timely diagnosed, the possibility of a 5-year survival was 39 percent, but by the time the decedent was diagnosed, the possibility dropped to 25 percent.[3]
  • Expert testimony presented that absent negligence the patient “would have had a 50 to 60 percent chance of a better outcome [of] no disability or, at least, significantly less disability.”[4]

 By Seattle personal injury attorney Travis Scott Eller

 

 



[1] Herskovits v. Group Health Coop. of Puget Sound, 99 Wn.2d 609, 634, 664 P.2d 474 (1983).

[2] Mohr v. Grantham, 172 Wn.2d 844, 846-47, 262 P.3d 490 (2011).

[3] Herskovits, 99 Wn.2d at 612.

[4] Mohr, 172 Wn.2d at 849.

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A Lawyer’s Toolbox http://www.theseattleinjuryattorney.com/a-lawyers-toolbox/ Sun, 27 Jan 2013 22:52:33 +0000 http://www.theseattleinjuryattorney.com/?p=2778   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 […]

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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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SOL cases for 2012 http://www.theseattleinjuryattorney.com/sol-cases-for-2012/ Wed, 19 Dec 2012 14:10:55 +0000 http://www.theseattleinjuryattorney.com/?p=2711 Miss the statute of limitations (SOL) and your are s**t-out-of-luck (SOL). If a lawsuit is not filed and served by the statute of limitations deadline the case is lost forever regardless of how much merit it may have had. No matter how serious the injury, no matter how unforgivable the fault – the personal injury […]

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Miss the statute of limitations (SOL) and your are s**t-out-of-luck (SOL).

If a lawsuit is not filed and served by the statute of limitations deadline the case is lost forever regardless of how much merit it may have had. No matter how serious the injury, no matter how unforgivable the fault – the personal injury claim is gone.

Some wait to the last minute to find and attorney to file and serve their personal injury case. This sometimes leads to a train-wreck – a dismissed case; a lost appeal. Every year several Court of Appeals cases fit this description. Here is a quick review of the SOL cases decided by the Washington State Court of Appeals in 2012.

Oh, brother! The personal injury plaintiff filed the case about a week SOL ran. By law there is a 90-day period in which to serve the defendant. The pleadings were erroneously served at the house of the defendant’s brother, rather than the defendant’s house. The defendant had never lived at the brother’s home. By the time the personal injury plaintiff realized service was erroneous, the 90-day period had run. The case was dismissed by the trial court and the dismissal upheld on appeal.[1]

My personal-injury-case has fallen, and it can’t get up. A woman fell on loose carpet in her apartment. She sued the apartment complex. Her attorney amended the original complaint alleging new theories of liability, but apparently failed to serve the amended complaint. Although the apartment complex did in fact receive a copy of the amended complaint along with the motion to amend, the amended complaint was never formally served. The case was dismissed, a result upheld on appeal.[2]

Return to sender. A woman was injured in an automobile accident. She filed a lawsuit only four days before the SOL deadline.  Per statute there is a 90-day period to serve the other driver. The address the attorney had for the other driver was out-of-date. The attorney served a subpoena on the other driver’s insurance company demanding an up-to-date address. They supplied the same address. He then moved for the court to allow service on a PO Box. The motion was denied because a) the attorney failed to produce evidence of efforts made to find the defendant and b) service by mail to a post office box is not authorized by statute. This SOL ran, the case was dismissed, and the court awarded fees to the defendant and his insurance company. This result was upheld on appeal.[3]

And here is one of our favorites from previous years.

What’s in a name? Elisabeth was involved in an auto accident in which it was alleged she injured someone. The complaint named Elizabeth and served Elizabeth at Elizabeth’s home. Elizabeth is Elisabeth’s mother. Elisabeth did not live with Elizabeth. By the time the attorney realized what had happened the SOL had run. The claim was dismissed. In upholding the dismissal the Court of Appeals noted that this case is different from misnomer cases where the correct person is served and the documents clearly refer to the correct person, but there is a typo in the name. In this case the attorney named the wrong person and served that wrong person at that wrong person’s home, not the correct person’s home. In other words, there really was an Elizabeth and it was Elizabeth who was both named and served, which is a different scenario from serving the right person and simply misspelling the name.[4]

Every year you can count on several statute of limitations cases going up on appeal. These cases usually do not go well for the personal injury claimant (“plaintiff” in legalese).

The problem arises when the personal injury case is filed and served at the last minute, only to find out too late that service was not good. Even if the documents were actually received, if service is not up to legal requirements the case is dismissed. If the statute of limitations deadline has run in the meantime, there is no lawsuit – no matter how meritorious it may have been. It’s over.

The statute of limitations in Washington for personal injury claims is generally three years. A lot can happen in three years. People move. Marry and change names. Mistakes happen. The process server goes to the wrong house. Or, the process server serve a relative with a similar name.  

The best way to avoid these train wrecks is to file and serve well in advance. Our policy is whenever possible to file and serve any lawsuit at least six months before the SOL runs, so we are never SOL in the other sense.

is a personal injury attorney in Washington state.

 


[1]Cheesman v. Rowse, unpublished opinion (No. 66134-5-I FILED: April 23, 2012).

 

[2]Hill v. Windsong Village Apartments, unpublished opinion (No. 66662-2-I April 25, 2011).

 

[3]Defelice v. Jones, unpublished opinion (No. 29231-2-III).

 

[4]Herrick v. Loeliger, (62947-6-I, filed December 21, 2009).

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Burger King Employee Spits in Sheriff Deputy’s Burger http://www.theseattleinjuryattorney.com/burger-king-employee-spits-in-sheriff-deputys-burger/ Fri, 01 Feb 2013 00:43:17 +0000 http://www.theseattleinjuryattorney.com/?p=2833 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 […]

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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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Snow Blind http://www.theseattleinjuryattorney.com/snow-blind/ Tue, 19 Feb 2013 15:34:49 +0000 http://www.theseattleinjuryattorney.com/?p=2858 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 […]

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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.

A huge snow pile blocks a driver's vision of on-coming traffic. As you might guess, this does not end well.

A huge snow pile blocks a driver’s vision of on-coming traffic. As you might guess, this does not end well.

Mr. Todd sued the hardware store that was on the corner to his left for property damage and personal injury.

The store did not dispute that its parking lot was cleared of snow. The store nevertheless moved to dismiss the case on summary judgment, arguing that Mr. Todd’s negligence was the sole cause of the accident, that the store owed no duty to Mr. Todd, and that if any duty was owed it did not breach that duty.

Mr. Todd responded, arguing that his own deposition testimony and circumstantial evidence created a material issue of fact, and that there were outstanding discovery requests.

The trial court granted summary judgment.

The Washington Court of Appeals reversed.[1]

The Court of Appeals concluded that the hardware store misunderstood the summary judgment burden of proof. Contrary to the store’s argument, the moving party in a summary judgment motion bears the initial burden of showing a lack of evidence.

Mr. Todd is entitled to inferences in his favor for purposes of summary judgment. While he never witnessed anyone acting on behalf of the store plowing any snow, he observed a snow large berm on the public right of way at the edge of the store’s parking lot. Creating a snow pile is a matter of common understanding, not one where expert testimony is necessary.

The Court of Appeals concluded that summary judgment is not appropriate where discovery is outstanding and where the non-moving party’s deposition raises a fact issue.

 

by Travis Eller

Note – our firm was not involved in this case.

 

 



[1] Todd v. River Ridge Hardware, Inc., unpublished opinion (No. 29551-6-III).

 

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One Drove Over the Cuckoo’s Nest – Mentally Disturbed Woman’s Estate Sues Hospital http://www.theseattleinjuryattorney.com/pyschiatric-care-negligence/ Mon, 08 Apr 2013 14:20:30 +0000 http://www.theseattleinjuryattorney.com/?p=2916 A mentally disturbed woman died in a single-car accident after admitting herself for psychiatric treatment, then being released. The woman suffered from bipolar disorder. Around Christmas Day 2006, she stopped taking her medications and began to drive aimlessly throughout Washington, Oregon, and Canada. Late at night on December 30, 2006, she sought help at a […]

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A mentally disturbed woman died in a single-car accident after admitting herself for psychiatric treatment, then being released.

The woman suffered from bipolar disorder. Around Christmas Day 2006, she stopped taking her medications and began to drive aimlessly throughout Washington, Oregon, and Canada. Late at night on December 30, 2006, she sought help at a hospital emergency room in Seattle, reporting sleeplessness, paranoia, hallucinations, and suicidal thoughts. She was referred and transported to Overlake Hospital Medical Center where she agreed to be admitted voluntarily into the psychiatric unit. Eighteen hours later, she said she felt better and asked to be discharged.

A nurse tried to dissuade her from leaving, but after a telephone consultation with the county designated mental health professional, she granted the request to be discharged. The woman went home in a taxi but then resumed driving. Sadly, she died not long afterwards, miles away, in a single-car crash.

Her estate sued the Overlake Hospital and King County. The estate settled with King County, leaving the claim with Overlake to be litigated. The trial court granted summary judgment in favor of the estate, finding that the hospital was negligent.

On appeal Overlake Hospital argued that by statute the hospital is not liable unless the estate can show gross negligence, rather simple negligence.

The statute the hospital relied upon reads in part:

“No…evaluation and treatment facility shall be civilly or criminally liable for performing duties pursuant to this chapter [on psychiatric treatment] with regard to the decision of whether to admit, discharge, release, administer antipsychotic medications, or detain a person for evaluation and treatment: PROVIDED, That such duties were performed in good faith and without gross negligence.”[1]

The Washington Court of Appeals held that the trial court erred in judging the hospital by a mere negligence standard. The Court of Appeals held that the statute applies and the hospital is liable only if grossly negligent. The Court of Appeals sent the case back to the trial court for trial by the gross negligence standard.

By personal injury attorney Travis Eller

lawblog disclaimer

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Tenants’ Dog Bites Visitor during Home Inspection http://www.theseattleinjuryattorney.com/tenants-dog-bites-visitor-home-inspection/ Thu, 16 Feb 2017 18:10:24 +0000 http://www.theseattleinjuryattorney.com/?p=4033 Shelly’s daughter was considering buying a house. The house was occupied by tenants who kept a Rottweiler-Labrador mixed dog.  Shelly accompanied her daughter on an inspection of the house. The tenants had informed the real estate broker that their dog would be closed up in the laundry, which no one should enter. The inspector and […]

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Shelly’s daughter was considering buying a house. The house was occupied by tenants who kept a Rottweiler-Labrador mixed dog.  Shelly accompanied her daughter on an inspection of the house.

The tenants had informed the real estate broker that their dog would be closed up in the laundry, which no one should enter. The inspector and potential buyer wanted to see the entire house, so Shelly—believing she was good with dogs—entered the laundry room.

The dog was friendly at first, but later Shelly notice the dog outside the laundry room. The dog was sick, and apparently trying with difficulty to return to the laundry room. Shelly tried to assist the dog to return to the laundry room. The dog bit and injured Shelly. Shelly later sued the tenants.

The trial court dismissed Shelly’s claims. Shelly appealed.[1] Our firm did not represent anyone in this matter.

The Court of Appeals held that the dog owners were not liable. The Court held that Shelly did not have permission to be in the property. The permission was extended only to the potential buyer and the inspector. Also, the tenants had informed everyone that the dog would be closed up in the laundry, and therefore no one was to enter that room.

Under some circumstances dog owners are strictly liable if their dog bites someone. Proving strictly liability requires the injured person to establish that the dog owner knew or should have known of the particular dog’s vicious or dangerous propensity. Shelly implied that the dog’s breed—a Rottweiler-Labrador mix—shows a dangerous propensity. The Court noted that no evidence was offered that this particular breed is prone to attacking, nor any was any authority cited to show that a dog’s breed is a legally relevant consideration.

While we did not represent anyone in this case, it is an interesting dog bite opinion. The case illustrates that a dog owner is not automatically liable for injuries inflicted by the dog—contrary to a widely held misconception. Dog bite cases are a lot trickier than simply proving that a dog bit someone and caused injury.

If you have suffered a dog bite injury it is wise to consult with an attorney early.

[1] Carr v. Riveros, unpublished opinion (No. 73927-1-I  Nov. 28, 2016).

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Racially Charged Statements in Medical Malpractice Case http://www.theseattleinjuryattorney.com/racially-charged-statements-in-medical-malpractice-case/ Sat, 23 Mar 2013 20:08:23 +0000 http://www.theseattleinjuryattorney.com/?p=2893 A woman who suffered from kidney disease had a disagreement with her doctor and stopped receiving medical care. She relocated and changed doctors. Her doctor ordered a biopsy and steroid treatment. She had a phobia of needles and an aversion to steroid treatment and said something to the effect of “I would rather lose this […]

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A woman who suffered from kidney disease had a disagreement with her doctor and stopped receiving medical care. She relocated and changed doctors.

Her doctor ordered a biopsy and steroid treatment. She had a phobia of needles and an aversion to steroid treatment and said something to the effect of “I would rather lose this kidney than go through any more of this.” Eventually, her new kidney failed and she had to begin dialysis again. She was placed on “inactive status” for the kidney transplant list, because of ongoing problems with infections caused by dialysis catheters.

lawblog disclaimer

She felt she was not treated well at her dialysis center and skipped or cancelled many appointments. Ultimately, she was taken off the transplant list because of her noncompliance with dialysis treatment.

She sued her doctor for malpractice, alleging lack of informed consent and asserting that she had adhered to all prescribed treatment.

Her doctor defended by arguing he met the standard of care and that the patient had failed to comply with prescribed treatment.

Prior to trial both parties designated thousands of pages as admissible under court rules. Some of those records included these statements in her doctor’s notes.

“[The patient] has made me uncomfortable emphatically stating she will not be mistreated based on race. Her mother joins in with statements like “don’t make us go all black on you now.” These statements are not appropriate and make me uncomfortable even said in a laughing way. I feel they are taunting me. It is always my goal to treat all my patients fairly regardless of ethnic background. I do not correct these statements because it only takes me farther from the real point of these clinic visits – her renal failure.”

 

These statements were never referenced or displayed during trial. The patient objected to the documents being admitted into evidence and going to the jury room. The court allowed the documents into evidence and without redacting the racially charged statements.

On appeal the patient argued that the trial court erred by admitting the statements into evidence.[1] The patient’s attorney cited a case where Washington courts had found prosecutorial misconduct.

In State v. Monday, the Washington Supreme Court reversed based on racial references amounting to prosecutorial misconduct.[2] The prosecutor purposefully injected racial themes to attack witnesses’ credibility on the sole basis of their race.  He argued that ”’black folk don’t testify against black folk”‘ and referred to the “police” as “‘po-leese.”‘ There was no factual support in the record for the proposition that only ”’black folk'” adhere to a so-called anti-snitch code.   The court held that a prosecutor may not “seek to achieve a conviction by resorting to racist arguments.”   It explained that, “appeals by a prosecutor to racial bias” fundamentally undermine the principle of equal justice, because they “necessarily seek to single out one racial minority for different treatment.”

The Court of Appeals distinguished the Monday case on several grounds. The challenged statements are statements that the patient and her mother made to or about her doctor, not that he made about her or her race. The statements at issue were relevant to a central issue of the case: informed consent. It was relevant to whether the patient trusted her doctor, whether she listened to her doctor’s advice, and whether she understood and complied with ordered treatment. The clinic note, including the challenged comments, established the patient’s distrust in her doctor, her propensity to disregard his advice, and her tendency to place irrational blame on her doctor and his staff.

 

The Court of Appeals upheld the trial court’s ruling.

By Travis Scott Eller, Personal Injury Attorney

 



[2] 171 Wn.2d 667, 681, 257 P.3d 551 (2011).

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