Washington DC Metro Personal Injury Lawyer Blog

On April 10, 2012 U.S. Senator Ben Cardin (D-Maryland) and officials from the Washington Metropolitan Area Transit Authority (WMATA) urged the House of Representatives to pass the Moving Ahead for Progress in the 21st Century (MAP-21) surface transportation bill.

In a press release Senator Cardin said, "WMATA and other public transit systems around the nation are waiting for the House to take action on a transportation reauthorization bill that had strong bipartisan support in the U.S. Senate. Safety of the traveling public and jobs that will help restore our economic health depend on the passage of this legislation."

The $109-billion, two-year transportation bill was passed by the Senate on March 14, 2012. The U.S. Department of Transportation estimates that MAP-21 will support 1.9 million jobs nationwide, 30,000 jobs in Maryland, and nearly 8,000 rail and bus jobs with WMATA. The bill would enable cash-strapped transit agency to proceed with important maintenance and safety projects such as:

• Implementing the National Transportation Safety Board's (NTSB) Safety Recommendations: These include improvements recommended by the NTSB following the June 2009 crash on the Red Line. The first $1 billion of WMATA's capital program is dedicated to addressing these safety recommendations.
• Replacing Outdated Rail Cars: WMATA is gradually replacing its 35-year-old "1000 Series" rail cars and purchasing 300 modern "7000 Series" rail cars.
• Modernizing the Bus Fleet: WMATA needs to rehabilitate 100 buses annually during a six-year period. The new buses will include hybrid electric buses and updated security and mechanical systems.
• Rehabilitating Bus Facilities: This overhaul will include bus facilities that started operating 90 years ago, and will increase overall safety and efficiency.
• Repairing Rail Lines and Tracks: To improve safety, reliability and performance, WMATA plans to ensure that 60 miles of track are brought into a "state of good repair" over the next six years.

MAP-21 also contains a provision to increase the monthly tax benefit for using transit to $240. More than 250,000 daily WMATA riders take advantage of the federal transit benefit to help save money on transportation expenses, reduce fuel consumption, and ease traffic congestion in the D.C. area.

Stein, Mitchell & Muse, LLP has successfully handled numerous cases against Metro and other transportation providers. If you or a loved one have been injured while using Metro's bus or rail system, please call us for a free consultation.

Our client, a nurse practitioner, was on her way to work one morning when she was struck broadside by a flatbed tractor-trailer. She had entered the intersection on a green light. The tractor-trailer, which was speeding, entered the intersection on a red traffic signal. Impact occurred with frightening severity, totaling our client's vehicle and delivering thousands of pounds of force to her body.

The defendant's designated representative admitted in his deposition that the company did absolutely nothing to verify their employee's employment background and driving history before entrusting him with a potentially lethal tractor-trailer weighing up to 30,000 pounds. As a result, he was allowed to drive the tractor-trailer despite the absence of a valid operator's permit. Contrary to the established practice among trucking companies, no record check was made to confirm that the operator was legally or professionally competent to operate such a vehicle. A routine inquiry with the Virginia Department of Motor Vehicles would have disclosed that his operator's permit had been suspended and that he had a long history of traffic violations and permit suspensions.

Our client was flown by helicopter to a trauma hospital. Her injuries were severe and life threatening. She was hospitalized for more than 3 weeks. She required extensive rehabilitation services, including left hemothorax, spleen laceration, bladder contusion, mesenteric hematoma, subcapsular hematoma, colonic serosal laceration, left scalp avulsion and laceration, blunt head trauma, pelvic fractures, multiple fractured ribs on the left side, and contusion of the bladder. Emergency surgery included an exploratory laparotomy which revealed a need to perform emergency surgery including a splenectomy, repair of a serosal colon tear and mesenteric bleed, drainage of the pancreas due to contusion and hemorrhage, and placement of a left thoracostomy tube due to a left hemothorax.

The plaintiff also sustained permanent brain damage. Neuropsychological evaluations revealed that she suffered permanent brain damage which is evident in a variety of brain dysfunctions. She has frontal lobe brain damage which has caused her severe depression and also affected her decorum and social behavior. She is not in full control of her behavior, tends to express herself in an inappropriate fashion and is not able to relate as well to people. She has also suffered damage to the temporal lobe of her brain. This damage is responsible for her poor language skills and significantly impairs her ability to learn new concepts and terms. She likewise has damage to her limbic brain which is responsible for her loss of decorum, emotional lability, and frequent periods of crying and laughing in an inappropriate manner. Finally, she has damage in vital areas of memory and processing of information. She cannot retain information or store new information for long due to diffuse organic brain damage.

A substantial settlement was achieved on behalf of the plaintiff prior to the scheduled trial date.

Gerard E. Mitchell, Esq. is a comanaging partner at Stein, Mitchell & Muse, LLP, and specializes in medical malpractice, products liability, and serious personal injury in Washington, D.C. and Maryland. Sandra L. Thayer, has been with the Firm working with him for more than 25 years.

Local radio station WTOP recently obtained video clips from Metrobus dashboard cameras in response to a Public Access To Records Policy request.

A review of the video clips shows Metrobuses involved in numerous traffic violations, such as running red lights, stop-sign violations, collisions, and near-collisions with motor vehicles and pedestrians.

When WTOP asked for drivecam videos from August/September 2011, it received 134 near-collision videos. Metro's acting superintendent of bus transportation, Ted Harris, told WTOP that with every Metrobus vehicle having a dashboard camera (approximately 1,200 vehicles), hundreds of clips are generated every single day. The cameras are set to begin recording when a Metrobus brakes or turns too quickly.

Metrobus is viewing the drivecam clips as "coachable moments" to improve operator safety. But the transit agency is also punishing operators. Punishments range from written disciplinary action or suspension with required additional training, to termination. Bus operators' job performances are also evaluated every year. Drivers are typically allowed three incidents before termination, but a major mistake or accident could result in immediate firing. According to Harris, about 30 bus operators have been terminated for cell phone violations since February 28, 2011.

The camera system has been in place for about one year and Metrobus reports there has been a 20% reduction in collisions in which a passenger is injured and requires transportation for medical treatment.

Stein, Mitchell & Muse, LLP has successfully handled numerous cases against Metro and other transportation providers. If you or a loved one have been injured while using Metro's bus or rail system, please call us for a free consultation.

The accident was so horrific that it seemed to take forever for the Jaws of Life to set him free. He was transported to the closest trauma center with a long list of serious injuries - a fractured skull, cerebral and subarachnoid hemorrhage, extensive loss of brain tissue and organic brain damage, bilateral punctured lungs, fractured ribs, and perforated intestines. He required a craniotomy and frontal lobectomy, and bone graft with maxillofacial plates. He remained in a coma and stupor for four months. It would be another two months before he could be transferred to a rehabilitation hospital to relearn the basics of living.

This 19-year-old man suffered severe cognitive and emotional deficits, along with major physical impairments and left-sided hemiparesis, an inability to walk or perform daily functions, and musculoskeletal deterioration, short-term and long-term memory impairment, and impaired visuospatial perception, significant learning problems, and fine and gross motor coordination loss. He will always be unable to care for himself, and will continue to need 24-hour per day attendant care throughout his lifetime. Other problems include extensive physical therapy, dementia characterized by severe frontal lobe syndrome, with loss of most right brain function, and he will require lifelong psychological counseling, psychiatric evaluations and treatment, antidepressant medication, and is likely to suffer from prolonged periods of depression.

For now, he has his mother to help him. What happens to this young man (and others just like him) when the family dies? As you can probably guess from the injuries listed above, it will cost a lot of money over his lifetime to get the necessary medical treatment that is required. In this case, the person at fault in this instance was working for the federal government at the time and therefore had more monetary compensation available to him than an individual driving their personal vehicle. To adequately compensate the victim who has injuries this extensive, an attorney representing the injured party would hope that a commercial or government vehicle (both of whom would carry extra insurance) was at fault.

When you hear about settlements and jury verdicts being too high, and discussions about capping awards, remember this young man and the amount of money needed to adequately compensate someone like him. The only silver lining for this 19-year-old is the fact that our law firm was successful in obtaining a substantial amount of money to help care for him now, and will enable him to hire help when he is without a family member to take care of him. Not every person who is this severely injured will have more than a few hundred thousand dollars available to help care for them.

By Laurie Amell, Esq. and Sandra L. Thayer, Legal Assistant

Slip and fall incidents often occur within the premises of retail stores. Many retail establishments operate surveillance cameras on the premises, but do not routinely retain the video footage for an extended period of time. If you have been the victim of a slip and fall at an establishment that operates surveillance cameras, it is advisable that you or your attorney notify the store manager in writing about your incident as soon as possible, providing the date, time and location, and requesting that all surveillance videotapes, witness statements and any other evidence related to your incident be preserved.

A recent Virginia case addressed evidence "spoliation," or destruction, in the slip and fall context. The United States District Court for the Eastern District of Virginia, Norfolk Division, issued an opinion in the slip and fall case of Aaron v. Kroger Ltd. Partnership I, where the plaintiff's lawyer had delivered an evidence preservation letter to the grocery store manager, and the store nevertheless knowingly permitted relevant surveillance video footage to be destroyed. See Civil Action No. 2:10cv606. The Court had initially made three key findings: (1) that the defendant destroyed relevant evidence; (2) that the plaintiff had made a timely request for the evidence to be preserved, which imposed a duty on the defendant to preserve the evidence; and (3) that the defendant's destruction of the evidence was willful. Having decided these three issues, the Court ruled that an adverse inference spoliation jury instruction would be given, and further ruled that the defendant would not be permitted to introduce evidence to rebut the adverse inference. Accordingly, the jury would be instructed that they are permitted to assume that the lost video footage would have been unfavorable to the defendant's theory of the case.

Adverse inference instructions and other sanctions are generally more appropriate in the context of willful destruction of evidence, but have at times been justified in the context of mere negligence, particularly where a party demonstrates substantial resulting prejudice. From an injured plaintiff's perspective, it can be very difficult to establish the nature of the condition that caused a premises slip and fall, and the extent to which the defendant establishment was on notice of the condition, if relevant evidence is not preserved and made available in the discovery process. The spoliation doctrine helps protect against an unjust absence of evidence, and creates an incentive for defendants to preserve relevant information.

The D.C. Court Of Appeals ruled that an employee waived its right to sue the customers of her employer, even if those customers negligently cause her injury. In this case, called Brown v. 1301 K Street Limited Partnership, the employee was hired by Allied Barton Security beginning in January 2005. She signed an employment contract which stated:

I understand that state workers' compensation statutes cover my work-related injuries that may be sustained by me. As a result, and in consideration of Allied Security offering me employment, I hereby waive and forever release any and all rights I may have to:

- make a claim, or commence a lawsuit,

- or recover damages or losses from or against any customer (and the employees of any customer) of Allied Security to which I may be assigned, arising from or related to injuries which are covered under the workers' compensation statutes.

The employee fell at work and suffered injuries. Her fall was on the premises a building owned and managed by customers of Allied Barton Security. She asserted a workers' compensation claim, for which she received compensation. She then commenced the lawsuit against the owner and management company for negligence, violation of OSHA, and violations of the D.C. Industrial Safety Act. The building owner and property manager asked the trial court to throw out the case, stating that the disclaimer in her employment agreement barred the claim. The trial court granted the motion and dismissed the case.

The Court of Appeals agreed with the decision to throw out the case. It said that there it is not against public policy for the employer to protect its customers from liability for workplace injuries, choosing instead to compensate its employees itself exclusively through workers' compensation. Likewise, the fact that the defendant's conduct allegedly violated OSHA or the D.C. Industrial Safety Act did not invalidate the disclaimer.

This decision cuts against the general rule that pre-injury disclaimers of liability must clearly state that they absolve the wrongdoer of liability for its own negligence. See Moore v. Walker, 930 A.2d 276 (D.C. 2007) ("Because the parties expressed a clear intention to release liability and because that release clearly included liability for negligence, that intention should be enforced."). It thus potentially opens the door to arguments that vague pre-injury waivers may be enforced.

A project funded by several federal agencies, including the District Department of the Environment, the Office of Planning found that the roads near the Anacostia Metro station are among the most dangerous in the District for pedestrians. Narrow sidewalks, missing median strips and crosswalks, and the five-way intersection of Martin Luther King, Jr. Avenue, Howard Road, Sheridan Road, and Fifth Sterling Avenue that the U.S. Environmental Protection Agency calls one of the "city's most dangerous intersections for pedestrians" are a few reasons the area is so hazardous for pedestrians.

The Anacostia Metro station, which serves approximately 8,000 Southeast D.C. residents per day, opened in 1991 and was originally designed as a park-and-ride facility. Other stations built along the Green Line with higher demand for parking caused the Anacostia station to encounter much more pedestrian traffic than was originally anticipated. As a result of the close proximity of the Thurgood Marshall Academy Public Charter School and the large population of elderly Ward 8 residents, schoolchildren and the elderly make up a large percentage of the pedestrian population in the area surrounding the Metro station. Unfortunately, pedestrian access was an afterthought in the planning of the layout of the station, and there have been few improvements made since the station's opening.

The District of Columbia was recently selected as one of five capital cities to receive technical design assistance from the U.S. EPA's "Greening America's Capitals" initiative, with the goal of enhancing pedestrian and bicycle safety in the public spots surrounding the Metro station and to "green" the community through park and recreation areas, improved water and air quality, and community health benefits. The EPA design team's main areas of focus will be "safety concerns at the intersections, improved signage, increasing the overall permeability of the area to manage storm water, and creating a strong community identity."

One proposed change includes putting in a 100-foot wide pedestrian crosswalk across Howard Road, leading to a small park-like area. Another includes closing Fifth Sterling Avenue north of Howard Road, eliminating the ramp to I-295, and adding two water-retention ponds north and south of Howard Road to control water runoff from I-295.
A charrette (public meeting) was held on February 15, 2012 to explain proposed changes to and take suggestions from residents. Residents suggested adding footbridges, way-finding signage, refuse medians, speed humps, and better lighting.

This project will be ongoing, but D.C. residents should be alert and cautious when walking or biking in the area surrounding the Metro station.

Virginia courts have recently issued a number of instructive opinions in Slip & Fall and Trip & Fall cases. The plaintiff in a slip or trip and fall case must establish that a dangerous condition existed, that the premises owner had constructive or actual notice of the dangerous condition, and that the dangerous condition caused plaintiff's fall and resulting injuries. A common defense in these cases is contributory negligence, for example that the condition was open and obvious and the plaintiff did not exercise reasonable care in the face of a known unsafe condition. The recent case of Logan v. Boddie-Noell Enters, Inc. out of Danville, Virginia addressed a plaintiff's slip and fall (and resulting broken ankle) in a puddle at the entrance to a Hardee's restaurant. The weather outside was snowy and the puddle appeared to have been produced by patrons tracking in snow, as opposed to some affirmative conduct by the premises employees. The plaintiff failed to survive summary judgment on two grounds: first, the plaintiff was unable to show defendant's actual or constructive knowledge, i.e., that the premises owner knew or should have known about the puddle, and second, the plaintiff was contributorily negligent, as evidenced by testimony from witnesses who entered the restaurant simultaneously with the plaintiff and said they saw the puddle immediately. The Court noted that a solid tripping hazard is more likely than a liquid spill to constitute an open and obvious dangerous condition as a matter of law, but that there is no bright line test, and in this case the hazard was open and obvious.

In another recent case, a District Court in Norfolk, Virginia denied summary judgment in the context of a trip and fall on a carpet in a supermarket. The Court relied on testimony that the carpet had a tendency to roll up based on the poor fit of the mat within its frame, and that store employees had on previous occasions noticed that the carpet tended to roll up. The Court ruled that plaintiff had offered sufficient evidence to go to the jury on whether the carpet had constituted a dangerous condition, whether the supermarket was aware of this condition, and whether the carpet condition had caused the plaintiff to fall.

Both of these recent cases illustrate key issues that arise in the slip/trip and fall context. These cases are frequently very fact-driven, and it is important to make the most of all relevant facts in order to survive summary judgment as a plaintiff.

Several former professional football players have filed lawsuits against the National Football League, alleging that the NFL conspired to hide evidence which linked on-field concussions to permanent brain injuries. The players allege that the league published nonscientific papers written by biased members of its medical committee to assert that concussion injuries did not cause permanent brain injury and to denounce valid research suggesting otherwise.

The former players are seeking millions in compensation for damages ranging from occasional memory problems to degenerative brain disease. The most recent case (filed in Philadelphia) alleges that "[r]ather than warn players that they risked permanent brain injury if they returned to play too soon after sustaining a concussion, the NFL actively deceived players, by misrepresenting to them that concussions did not present serious, life-altering risks...."

At least eight related lawsuits have been filed in New York, New Jersey, Georgia, Pennsylvania, and Florida. The NFL has asked the courts in those jurisdictions to consolidate the cases into one action in the Philadelphia court where the first such case was filed last year.

One of the more seriously injured players is former Minnesota Vikings offensive lineman Brent Boyd, who, according to his attorneys, is the only living player diagnosed with chronic traumatic encephalopathy, a degenerative brain disease typically found during autopsies of people (including more than a dozen former pro football and hockey players) who have had multiple head injuries.

The plaintiffs in the latest case are former Philadelphia Eagles Ron Solt, Joe Panos and Rich Miano. Solt claims to have substantial memory loss and ringing in his ears after suffering at least one concussion in his 10 NFL seasons. Panos alleges that he sustained multiple concussions with the Eagles and Buffalo Bills, and suffers from headaches, memory loss, irritability, rage, mood swings and sleeplessness.

The NFL disputes that it was ever vague about the risks associated with playing football, and is defending the claims as barred under the players' collective bargaining agreements. This high-stakes litigation has all the makings of a protracted legal battle that will occupy the headlines for quite some time.

Stein, Mitchell & Muse, LLP has successfully handled several cases of concussion and other traumatic injuries resulting from the wrongdoing of others. If you have questions about a possible claim, we invite you to contact our office for a free consultation.

After a year-long investigation of the fatal August 2010 chain-reaction collision in Missouri (an accident that began when a distracted teenage driver rear-ended a stopped truck), the National Transportation Safety Board ("NTSB") has now recommended a nationwide ban on the use of all cell phones and other portable electronic devices while driving. Many states already have laws against using hand-held phones or texting while driving (see our earlier blog on Distracted Driving), but the NTSB's announcement yesterday goes further by imposing a total ban on the devices for any non-emergency use. If laws are enacted to follow the NTSB recommendation, then even the hands-free phones still permitted by some states would be illegal.

The new NTSB recommendation has created quite a buzz among advocates on both sides of the debate, with news reports featuring interviews and public commentary on the issue. Opponents of the new measure cite the difficulty of enforcing a total ban on cell phones and electronic devices, note that drivers have always had distractions in their vehicles (e.g., small children and radios), and condemn its infringement on personal freedoms.

The NTSB has a history of making recommendations to limit distracted driving, such as banning handheld devices for novice drivers and school bus and commercial-vehicle drivers, but this new ban would apply to all motorists. The NTSB has indicated a ban is necessary because so many people now have and use portable smart phones, making distracted driving an epidemic across the country. "This (distracted driving) is becoming the new DUI," said NTSB member Robert Sumwalt.

During its investigation into the Missouri crash, the NTSB found that the 19-year-old driver sent five and received six text messages during the 11 minutes prior to the crash. He was also seen leaning over just moments before impact, leading investigators to believe he was distracted when, at 55 mph, he ran his pickup truck into the back of a tractor-trailer that had stopped for road construction. The teen driver was killed in the collision, along with an occupant on one of the two school buses that then struck his pickup from behind. A total of 38 people were injured in the chain-reaction collision.

Stein, Mitchell & Muse, LLP regularly handles cases involving vehicular collisions caused by a variety of negligent acts and omissions, including distracted driving. If you or a loved one have suffered injury on the road, call us for a free consultation about your case.

Airbags are restraint systems that are designed to prevent serious injuries in moderate to severe collisions. Airbags are "passive" restraint systems because the vehicle occupants do not need to activate them. Airbags are "supplemental" restraint systems because they are not a replacement for seatbelts.

Several types of airbags are available to consumers. Frontal driver and passenger airbags are required by the National Highway Transportation Safety Administration ("NHTSA") in all new passenger cars, light trucks, and vans. The driver airbag is housed in the steering column. The passenger airbag is housed in the instrument panel. These protect against injury to the occupant's head and torso.

Many vehicles are now equipped with side airbags, although they are not yet mandated by NHTSA. There are three main types of side airbags on the market: (1) "Torso" airbags that protect the occupant's thorax, abdomen, and pelvic regions (located in the seatback); (2) "Combo" airbags that protect the thorax, abdomen, pelvic regions, and head (located in the seatback); and (3) "Curtain" airbags that protect the head (located in the roof rail).

A standard airbag system consists of an airbag module, crash sensors, and a diagnostic unit. The airbag module is made up of an inflator unit and the actual nylon material. The crash sensors tell the unit when to inflate. An internal switch closes an electrical contact, which triggers an ignition that produces a gas substance that forces the airbag to deploy through the module cover.

An airbag is not supposed to deploy every time a vehicle impacts an object. There are several reasons why by design an airbag may not deploy during a collision. For example, an airbag should not deploy in a minor accident, a collision in which the vehicle is moving at a slow rate of speed, an impact with a street curb or parking block, driving over a pothole or speed-bump, or a collision with an object such as a grocery cart.

There are other times when an airbag fails to deploy because of manufacturer error, such as a defectively designed sensor system. This can include poor sensor placement, inadequate number of sensors, or insufficient testing to ensure that the sensors will tell the unit to deploy an airbag when needed to prevent a serious injury. Even when the sensors are properly designed, an airbag will not deploy if there is an electrical problem that prevents the unit from receiving the trigger signal. These are many other reasons why an airbag will fail to deploy.

Experts usually need to examine the vehicle to determine whether an airbag should have deployed in a particular accident. Thus, it is important to maintain possession of the vehicle. Insurance companies quickly salvage damaged vehicles and ship them off to auction houses, which strip and sell the parts. By the time an attorney is retained, the vehicle could be dismantled or completely destroyed. To avoid this problem, get an experienced attorney involved immediately, who is competent to deal with the insurance company to ensure the vehicle is adequately preserved.

Stein, Mitchell & Muse LLP has successfully handled several cases of preventable deaths and tragic injuries resulting from airbag defects in collisions which were otherwise survivable or non-catastrophic. If you have questions about a possible claim, we invite you to contact Ari Casper of our office for a free consultation.

This past summer HBO aired an important documentary entitled "Hot Coffee," a film made by former DC-area attorney Susan Saladoff. The film takes a close look at the famous 1994 product-liability case (Stella Liebeck v. McDonald's Restaurants, P.T.S., Inc. and McDonald's International, Inc.) in which a 79-year-old Albuquerque woman sued McDonald's for burn injuries she suffered after spilling a 49-cent cup of hot coffee in her lap. A jury hearing the evidence awarded Ms. Liebeck $160,000 in compensatory damages (medical expenses, etc.) and $2.7 million in punitive damages against McDonald's. The trial judge later reduced the punitive damages award to $480,000 and the parties reached a confidential settlement before litigating an appeal.

But the public relations damage had been done. Much of the American public was outraged and saw the case as an example of what is wrong with our legal system: frivolous lawsuits allowing greedy plaintiffs to get rich. Few observers took the time to delve into the facts and learn that Ms. Liebeck suffered third-degree burns on 6% of her skin and first-and-second-degree burns on 16% of her body. She was hospitalized for 8 days (during which she lost 20 pounds), endured multiple surgeries for skin grafting in her pelvic area, and required follow-up medical treatment for two years after the incident. Nor did most people know that McDonald's had been requiring its restaurants to serve coffee so hot as to cause third-degree burns just seconds after skin contact, despite having received over 700 reports of customers scalded by hot coffee during the 10 years before Ms. Liebeck's incident.

Ms. Saladoff, who practiced law for 25 years before making "Hot Coffee," wanted to shed light on the decades-long campaign by corporations in America to shield themselves from accountability by convincing the public that our civil justice system has become dysfunctional through large jury awards in trivial cases, and that the solution is so-called "tort reform" via one-size-fits-all caps on damages, mandatory arbitration clauses that eliminate courtroom trials, and a loser-pays system of attorney fees.

The film includes news clips, amusing comments by politicians and celebrities, narration by aggrieved plaintiffs, and interviews with uninformed citizens who change their views when given the true facts of a case. It debunks popular misconceptions about the McDonald's case, such as the widespread belief that Ms. Liebeck was driving when her coffee spilled -- in fact she was sitting as a passenger in her grandson's parked car and was merely trying to remove the cup's lid to add cream and sugar to the coffee.

"Hot Coffee" aims to inform the public about real-life cases and show the harmful effects that efforts to change our civil justice system can have on everyday Americans. We at Stein, Mitchell & Muse LLP recommend seeing the film to gain a better understanding of the civil justice system established by this country's Founders, and the reasons they dedicated our Constitution's Seventh Amendment to preserving it.

The Court of Appeals of Maryland recently issued two separate published opinions that protect a plaintiff's right to a jury trial in slip and fall cases involving black ice. Both of the two recent opinions, Poole v. Coakley & Williams Construction and Thomas v. Panco Management of Maryland, involved the defense of "assumption of risk." In each case, the lower court judge had granted the defendant's motion for summary judgment and agreed with the defendant that the plaintiff assumed the risk of black ice as a matter of law and was not entitled to a trial.

The trial courts in both cases were relying on the 2008 Court of Special Appeals opinion in Allen v. Marriott Worldwide Corp. The court in Allen discussed the nature of black ice, and contrasted white ice from black ice as "between essentially visible ice and essentially invisible ice," but then proceeded to treat both types of ice functionally the same for purposes of whether a plaintiff assumes the risk of walking on the ice. In the 2008 case, the court dismissed the plaintiff's claims and ruled that, as a matter of law, the plaintiff should have appreciated the likelihood that black ice might be present and therefore could not recover for his injuries.

The two recent Court of Appeals cases addressed the Allen opinion directly, endorsing the distinction between visible white ice versus essentially invisible black ice, but, importantly, disagreeing that the two should receive the same legal treatment. Both written opinions pointed out that "assumption of risk" is an intrinsically subjective standard that inquires whether the particular plaintiff (a) knew about the risk, (b) appreciated the risk, and (c) voluntarily confronted the risk. In both Poole and Thomas, there was evidence that the plaintiff did not know, appreciate, and voluntarily confront the slippery black ice. Therefore, it was not proper for the trial judge to dismiss the case. Rather, the plaintiff was entitled to present his or her evidence, the defense could argue assumption of risk, and the jury would weigh the evidence and decide the outcome.

These recent Maryland decisions provide a timely clarification as the region braces for winter. They offer a reminder that in most circumstances, you do assume the risk of slipping and falling when you choose to walk on visible ice. Under any conditions, exercising reasonable caution and care for one's safety is always the best course. When, however, the presence of essentially invisible black ice causes an unsuspecting individual to fall and hurt himself, that injured person has a right to pursue damages in court.

When mega-verdicts against corporate defendants such as McDonald's (hot coffee case), Phillip Morris (tobacco litigation) or Exxon (Valdez oil spill) are reported in cyberspace, the public's view of the judicial system becomes grossly distorted.

So says a report published this month by the Center for Justice & Democracy (or CJD, a consumer advocacy group based in New York) and entitled "HEADLINE BLUES: Civil Justice In The Age Of New Media." The report actually updates CJD's own study 10 years ago, which found that media coverage of jury awards in civil lawsuits was skewed and triggered a public misperception that plaintiffs are routinely awarded huge sums for frivolous claims.

The new study found that today's media coverage generally still does not portray an accurate picture of the civil justice system, and certain new media trends are making the situation worse. In the 10 years since the original study was published, internet sites such as Google, Facebook, and Twitter have dramatically changed how the public gets its news. In 2001, television newscasts and newspapers were the leading outlets for the public's consumption of news, but both have seen their popularity decline since. Traditional media is now being supplanted by digital media.

Search aggregators such as Google return search results with brief headlines designed to grab the attention of the reader who rarely follows the link to read the full story. These headlines commonly emphasize large monetary awards which are not typical of most jury verdicts. For example, in CJD's survey of reported trials won by plaintiffs, the media jury award was $4.6 million, or 192 times higher than the national average of $24,000 recovered by a winning claimant. Additionally, "share" tools that appear beside a story are an easy way for the reader to copy a headline to his/her Twitter or Facebook pages, and then the process gets repeated as the original reader's "friends" see the headlines when checking their Facebook updates.

Another factor contributing to the trend is that newsrooms (digital and traditional) are understaffed due to economic cutbacks, yet the demand for instant news has increased. The result is 24-hour news stations with scrolling headlines across the bottom of the screen to grab the viewer's attention, yet fewer reporters dedicated to providing in-depth coverage of the civil justice system. Further, state-imposed caps on jury awards are not reported, giving the false impression that multi-million dollar winnings are common. According to CJD, "These terrible journalistic failures...perpetuate the same kind of myths about the frequency of high jury awards that led to legislative caps in the first place."

In sum, these various influences make it more likely today that the public is being
exposed to sensationalized and abbreviated coverage of civil jury verdicts. Stein, Mitchell & Muse LLP reminds you to be careful you are getting the whole story about a case in which damages are awarded to a plaintiff, as it has become too easy to jump to the wrong conclusions about our civil justice system based on incomplete factual information in the media.

A new study of structurally deficient bridges in major U.S. cities has found that 25% of the unsafe bridges in our largest metropolitan areas are carrying 75% of the daily traffic that crosses a deficient bridge. (Source: Transportation for America).

Last month, the governors of Kentucky and Indiana closed the busy Sherman Minton Bridge over the Ohio River in Louisville after inspectors located cracks in its structural beams. That closure and its resultant traffic congestion were well publicized, causing many Americans to question the condition of the busy bridges they cross each day.

Transportation for America, a coalition working on transportation reform nationwide, has analyzed the National Bridge Inventory (a database produced by the Federal Highway Administration) and found that one in nine U.S. bridges has been rated "structurally deficient," meaning that the bridge is in need of more-frequent-than-usual monitoring and critical priority maintenance, rehabilitation, or replacement.

The study ranked each state and the District of Columbia, placing DC as 20th worst in the country. 28 of the District's 234 bridges (about 12%) are "structurally deficient," according to the report. The average age of a bridge in DC is nearly 57 years. Here is a list of the 10 structurally deficient DC bridges with the most traffic.

The report's conclusion is that Congress needs to spend far more money on bridge infrastructure to ensure that thousands of drivers are not crossing structurally deficient bridges. Bridge rehabilitation projects in DC are already underway through the District Department of Transportation, including the bridges on 11th Street, 14th Street, and New York Avenue.

Stein, Mitchell & Muse, LLP has handled several cases involving motorists who have been tragically injured and even killed due to defective roadways. If you have questions about a possible claim, we invite you to contact our office for a free consultation.