If you have questions about these or other legal topics, please contact the personal injury attorneys serving Norristown and Chester County at The Mayerson Law Offices P.C.
The Mayerson Law Offices P.C.
3540 Schuylkill Road Rte 724
Spring City, Pennsylvania 19475
The following articles provide information on legal matters and potential hazards relevant to both national and Pennsylvania-specific issues. While not intended to take the place of personalized legal advice, these stories can be useful in preventing harm or injury and determining what does and does not constitute legal responsibility. If you have additional or specific questions, please contact the personal injury attorneys, serving Norristown and Chester County, at The Mayerson Law Offices P.C.
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The perception among drivers is that bigger is better, and therefore SUVs—which are bigger than other cars—must be safer. Unfortunately, this perception is not correct. SUVs, which are not only bigger but taller than other kinds of cars and trucks, have a disturbing tendency to roll over, which results in more serious accidents. Almost every make and model of SUVs have this problem.
According to the National Highway Traffic Safety Administration, SUVs roll over at more than twice the rate of other vehicles. As a result, the government requires SUVs to bear a warning label telling drivers that they are in danger of rolling over if they make a sharp turn, which they may have to do to avoid a collision. Of course, the problem is that merely warning a driver that this is the case does nothing to change the basic bad design, and, when a driver is faced with the choice of either plowing into another car or making a potentially dangerous sharp turn, most drivers will make the turn, resulting in many rollover accidents.
SUVs tend to be taller than cars, tend to have a higher ground clearance, and tend to have a narrower distance between their wheels, all of which combine to give SUVs a higher center of gravity that makes it easier for them to tip over. The size of SUVs means that they can be (and often are) heavily loaded, and extra weight actually makes it more likely that the SUV will roll over in a crash. The fact that most people use their SUVs as a family car rather than as an off-road vehicle has led most SUV manufacturers to remove roll bars from their SUVs—roll bars that would provide some protection in the event of a rollover.
Many SUV manufacturers tout the steps that they have taken to increase safety, but none of these steps involves any fundamental redesign of SUVs to make them safer. Instead, manufacturers claim that they have tested their SUVs and have found them difficult to roll over, but what they do not tell you is that these tests were conducted with lightly loaded SUVs driven by professional drivers, and the reactions of these drivers have very little to do with how an ordinary driver with three kids and a car full of groceries would react in the same situation. Also, don’t be fooled by the number of “stars” that an SUV has received—statistics show that even an SUV that has a five-star crash rating still has a 10% chance of rolling over in a single-vehicle crash.
The proof of the danger presented by SUV rollovers is shown in accident statistics. In the real world, rollover accidents are far more likely to result in death than are other kinds of accidents, and SUVs are involved in more rollover accidents than are other kinds of passenger vehicles. The propensity of SUVs to roll over means that while single-vehicle rollover accidents accounted for only 19% of passenger deaths in cars, they caused more than half (53%) of the passenger deaths in SUVs.
Litigating SUV rollover cases can be complex and usually requires proving that a maneuver that is commonly performed by drivers and that would not have caused a car to roll over did cause the SUV to roll over, and that, after it rolled over, its design was not enough to protect the occupants from injury. This involves knowledge of not only state laws governing negligence, but also federal safety regulations and the law of corporate liability and products liability.
If you or someone you love has been involved in an SUV rollover accident, you may have a claim against the manufacturer and others for any injuries that have been suffered. Do not settle for less than what you are due. Contact our personal injury attorneys in the Norristown area, also serving Chester County. We will be happy to discuss your case with you.
If you or someone you know has been injured in a rollover accident involving an SUV, take the following steps immediately:
1. Take pictures of the location of the accident and of the roadway, showing the layout of the road and any tire marks or scrapes.
2. Take pictures of the SUV and other vehicles involved in the accident. You cannot have too many photos.
3. Preserve the vehicle. If the SUV is totaled, the insurer will either pay you the value and keep the SUV or pay you the value minus the salvage cost and allow you to keep the wreck. BUY THE WRECK, or else it will be lost.
4. Gather important documents, including police reports, the names and contact information of witnesses, and medical bills.
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With people living longer lives and the traditional family structure disappearing, it is becoming more and more common for our elderly family members and friends to spend time, sometimes many years, in a nursing home. Given that nursing homes play such an important part in the lives of their residents, it is important to choose a good one. Before moving any family member or loved one into a nursing home, take the time to visit several in your area to see how they compare. When you visit, ask to be taken on a tour and use the following as a guide to determine which home you should choose.
When you visit a nursing home, the first observations you make may be the most important. What do you see? Ask yourself: Is this a place I would like to live? If the nursing home is clean and well kept, that is a good sign, while a dirty or untidy home may indicate the opposite. How does it smell? Is it brightly lit and inviting, or dark and depressing? Don’t be afraid to rely on your instincts.
A second source of information comes from reports filed with state authorities regarding the specific nursing home. Most states inspect and license nursing homes and issue surveys that contain all sorts of information regarding a particular nursing home’s operation. These reports typically include information about problems the state has found and steps the nursing home will take to correct these problems.
Although it will be unusual to find a nursing home that does not have a few documented problems, you should examine the kinds of problems that have been found. Serious violations, such as reports of abuse, should be a red flag, as should repeated violations of the same type or violations that take a long time to resolve.
The third major consideration is the quantity and the quality of the nursing home staff. How many employees are on staff? What is the ratio of staff to residents? What are the qualifications of the staff? Usually, the better trained the staff is, the better the nursing home.
Staff turnover is an important factor to consider. Facilities that do not pay well or that offer an unpleasant working environment often suffer from high turnover rates with staff coming and going all the time. Excessive turnover can result in the residents not receiving consistent, proper care, if only because the people who are familiar with the residents have left and been replaced with new employees.
The last consideration is the quality of the resident’s life, a consideration that often involves all of the issues discussed above. Is there enough staff to assist the residents with their needs, such as dressing and using the restroom? Does the nursing home sponsor varied social activities to keep its residents engaged and alert, or does it just turn on the TV every day? Is the food varied and nutritious, and do the residents have a choice in what they eat?
Choosing a nursing home is a very important decision, both for your older family member’s wellbeing and for your peace of mind. Take the time to make sure that the choice is the right one.
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You may have noticed that when a big lawsuit makes the news, the jury in the case is often asked to figure out if one of the parties was “negligent.” But just what does it mean to say that someone is negligent, in a legal sense?
The answer is that it means pretty much the same as it does in everyday conversation—that someone was careless. A basic statement of legal negligence is that a person “did not act as a reasonably prudent person would under the same circumstances.” However, a finding that a person has been legally negligent involves several different elements.
For example, most people would agree that a driver who runs a stop sign and hits a pedestrian has been careless, but has he been negligent? To find legal negligence, a court must first find that the person “breached” a duty owed to others. In our example, every driver owes a duty to others to be careful when driving a car, and running a stop sign violates this duty.
The negligent act must also cause damage. If the driver broke the pedestrian’s arm, this injury could mean that the driver was negligent. Finally, the damage caused by the negligence must have been “foreseeable.” Because most people would expect that a driver who runs a stop sign might hit someone, chances are that a court would find that the driver was legally negligent. In real life, most negligence questions are more complex than this example and can be complicated even more by the fact that sometimes more than one person was negligent. Contact the personal injury attorneys, serving Norristown and Chester County, at The Mayerson Law Offices P.C., if you have been injured and are trying to determine whether it was the result of someone else’s negligence.
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A debate rages in the country today: Is there a “lawsuit crisis” and, if so, what does it cost? Those who claim that there is a crisis often cite a report from consulting firm Tillinghast-Towers Perrin (TTP) claiming that lawsuits cost the country $246 billion a year. The problem with this “fact” is that the numbers just don’t add up. A group of respected economists hired by a nonpartisan think tank found that the conclusion from the TTP report was “one-sided” and “misleading.” Their study shows that the actual “costs” of lawsuits are less than one-third of the amount claimed. The TTP numbers were inflated by including things such as the insurance industry’s administrative expenses (which would be paid even if no lawsuits were filed) and payments on insurance claims. The economists fault TTP for using data that cannot be verified, because the authors claim their calculations are secret. These economists reject the claim that all Americans pay a “tort tax” as “indefensible.” Insurers, big business, and others use false numbers to demonize lawyers and to convince the public that a lawsuit seeking just compensation for injuries caused by someone else is wrong. Don’t be fooled.
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If you own property in a high-risk flood area, your mortgage lender probably requires that you maintain flood insurance. But if your home or business real estate is not in a high-risk area or you purchased the property without any commercial financing, you probably do not have any flood insurance.
In 1968, Congress created the National Flood Insurance Program (NFIP) to oversee and financially support a program of national flood insurance. Through private insurance companies and agents, the NFIP makes federally backed flood insurance available to homeowners, renters, and business owners in communities that cooperate in federal flood-control planning.
According to the Federal Emergency Management Agency (FEMA), 25% of all flood claims occur in low- to moderate-risk areas. Sudden or heavy rains, melting snow, failed levees or dams, and tropical storms and hurricanes can cause flooding even in higher elevations.
Flood insurance is generally affordable. Because the federal government sets premium rates, insurance companies that sell flood insurance compete on service rather than on price. When shopping for flood insurance, ask for information on how quickly the company resolves and pays its claims. To find out which insurance companies sell flood insurance policies in your area, ask your agent or visit www.fema.gov.
For some property owners, flood insurance is unavailable or unaffordable. The North Carolina Outer Banks, sections of the Florida panhandle, and selected areas in Delaware and South Carolina are not eligible for federally subsidized flood insurance. By withholding subsidized insurance, the federal government is trying to discourage land development in those areas. While some private insurance companies offer flood insurance not backed by federal financing, that insurance is so expensive as to be unaffordable for most property owners.
FEMA notes that most people who suffer flood damage have no flood insurance. Since flood insurance is not a standard provision in your homeowner’s or business premises coverage, you may be completely without coverage. It is prudent to act quickly—flood insurance policies generally exclude coverage for the first 30 days of the policy. It will be too late to buy flood insurance when you hear that a major weather event is about to cause flooding in your area.
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In 2002, the first contraceptive patch for women came on the market. This prescription drug, which is sold under the name “Ortho Evra®,” allows women to receive birth control medicine through a patch placed on their skin. One patch delivers its dosage over the course of a whole week, whereas birth control pills must be ingested daily. Since its introduction, over 5 million women have used the Ortho Evra® patch.
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This past November, the FDA warned that women who use the patch are being exposed to levels of estrogen far higher than women who use birth control pills—as much as 60 percent more. Exposure to high levels of estrogen has been linked to an increased danger of blood clots, and information obtained from the FDA shows that women who use the Ortho Evra® patch are three times more likely to develop blood clots than women who use birth control pills.
The FDA information also discloses that 23 of the women using the patch died, and as many as 17 of the deaths may have been related to blood clots. This is cause for concern, because the FDA itself estimates that it receives reports in only 1% to 10% of cases involving adverse drug reactions, and so the number of clot-related problems and deaths could very well be much higher.
For the time being, the FDA has approved of a change in the warning labels placed on the Ortho Evra® patch, making users aware of the risk, but it has not pulled the drug from the market. The maker of Ortho Evra® has vowed to launch its own study of the incidence of so-called “thrombotic injuries”— which include blood clots and strokes—associated with the use of the patch. However, there are reports that crucial data relating to thrombotic injuries from the original clinical trials was downplayed in the marketing campaign that was launched after the drug was approved.
Symptoms of blood clots are varied and can include sharp chest pain and coughing of blood (caused by clots in the lungs), pain in the calves (caused by clots in the legs), sudden loss of vision (caused by clots in the eye), or sudden and severe headaches, vomiting, dizziness, falling, and problems with speech and eyesight (a stroke, possibly caused by clots in the brain). Of course, if you use theOrtho Evra® patch and have any of these symptoms, go to a hospital immediately. If you have used theOrtho Evra® patch and have been treated for clotting, contact our personal injury attorneys, serving Norristown and Chester County, to discuss your legal options.
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A 23-year-old Pennsylvania man died when his physician failed to diagnose the onset of Type I diabetes. His death triggered a lawsuit that gave Pennsylvania’s appellate court an opportunity to clarify the obligations of patients. [See Angelo v. Diamontoni, 2005 PA Super. 120, 871 A.2d 1276, appeal denied, Pa, 889 A.2d 87 (2005)]
The young man first consulted his physician, complaining of vomiting, blurred vision, dry mouth, lightheadedness, and inability to work. The physician diagnosed him with influenza and allowed him to go home. Her notes confirmed that she was aware of his family history of diabetes. The same notes also documented the young man’s recent rapid weight loss, leaving him weighing only 144 pounds at 6’1” tall.
Less than one month later, the young man again appeared at the physician’s office, complaining of nausea and vomiting. Although he had no fever, he did exhibit an elevated heart rate. The physician diagnosed gastroenteritis and again sent the young man home, where he died the following day from complications related to his diabetes.
At the conclusion of the trial on the family’s medical malpractice claims, the trial judge gave the jury general instructions on contributory negligence. Pennsylvania law defines “contributory negligence” as conduct on the part of a plaintiff that falls below the standard of care to which he should conform for his own protection and that is a legally contributing cause in bringing about the plaintiff’s injury or death. Contributory fault may stem either from a plaintiff’s careless exposure of himself to danger or from his failure to exercise reasonable diligence for his own protection.
The jury found the physician negligent but also found that the young man’s contributory negligence was equal to the negligence of the physician. The family appealed the decision, arguing that the young man was not negligent at all.
On appeal, the Pennsylvania Superior Court agreed with the family. The court recognized that the young man was obliged to monitor his own health as part of the doctor-patient relationship. But the court emphasized that the young man had fully reported his symptoms to his physician on two occasions and that she had responded each time with an erroneous diagnosis. The court distinguished previous court cases where patients did not accurately report their conditions or symptoms while on a routine visit to their physicians. In this case, however, the visit was not routine, and the young man reported his symptoms as he understood them—nausea, vomiting, diarrhea, sweating, and chills over the prior two hours.
The court also noted that the young man left each visit assured of a diagnosis by a medical professional who was more knowledgeable than he was and on whose expertise he was entitled to rely. The court concluded that “his questions had been asked and answered and his duty as a patient satisfied.” Focusing on the fact that the young man had visited the doctor twice, coming a second time within weeks of his first visit, the court found that there simply was no reason for the trial judge to have instructed the jury on contributory negligence, since no facts supported any finding of such negligence.
This case provides insight for both doctors and patients into how the Pennsylvania courts view the duties of each. Doctors are not obliged to diagnose instantly or with complete accuracy. However, they must meet the standard of reasonable care of the medical profession. A patient with a family history of diabetes who has recently experienced significant weight loss should be tested for Type I diabetes. Patients are not obliged to be medical experts. However, they must report their symptoms thoroughly, follow up on any instructions from their physicians, and return for additional advice and treatment if their symptoms continue. Particularly when patients are visiting their doctors for routine physicals or checkups, they have a duty to completely report their full knowledge of their health to empower their physicians to pursue proper diagnostic techniques.
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A security guard, injured in a struggle with a mental health patient at a state hospital, fought to get workers’ compensation benefits for a permanent facial scar. [ See Norristown State Hospital v. WCAB, 858 A.2d 693 ( Pa. Commw. Ct. 2004)] She recently won her case. The security guard and her employer agreed that when the guard separated two female patients who were fighting, she was knocked across the room and her face was cut.
The hearing judge described the scar on the left side of the security guard’s face as permanent and as “a noticeable line two and three-quarters inches long, running from the top of her ear down to the bottom of her chin.” The judge also observed that the coloring of the scar was different from that of the surrounding skin, and he accepted as credible the guard’s testimony that the skin texture of the scar was rough. The judge granted the security guard five weeks of compensation for the scar. The guard appealed, arguing that the severity of the scar entitled her to a far longer period of compensation.
On appeal, the guard was granted 75 weeks of compensation for the scar. The court noted that the Pennsylvania legislature, in drafting the Workers’ Compensation Act, has never prescribed specific periods of compensation for disfiguring work-related injuries. Generally, workers’ compensation awards are designed to keep injured employees on partial pay until they have fully recovered and are able to return to work. Where employees suffer permanent, disfiguring scars, the Act simply provides that they are entitled to appropriate awards. The period of time for compensation for scars is not defined in the Act and is left to the discretion of the workers’ compensation judge.
In increasing the award to the security guard from 5 weeks to 75 weeks of compensation, the court noted that most workers’ compensation judges award between 65 to 85 weeks of compensation for serious facial scars. Recognizing that previous cases have established a need for general uniformity in awards for scars to ensure fairness both to employers and to employees, the court ruled that the appropriate award for the security guard was 75 weeks.
Employees may not realize that even when they are physically capable of returning to work they may be entitled to additional compensation for permanent, disfiguring scars. While no amount of money can ever restore an employee to his or her previous appearance, their entitlement to some compensation for work-related scars is something all employees should understand.
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“Underinsured” motorist coverage is insurance that you purchase from your own insurance company to pay for your losses if you are injured by someone who does not have enough of his or her own liability insurance to pay for all of the injuries you may suffer. “Uninsured” motorist coverage is insurance that you purchase to pay for your own losses if you are injured by an uninsured driver or by a hit-and-run driver.
Recently, a Pennsylvania highway worker was frustrated to find that she lost her entitlement to make a claim for uninsured motorist benefits because she did not report the accident to the police. [See State Farm Mutual Automobile Ins. Co. v. Foster, Pa., 889 A.2d 78 (2005)] The worker was injured when she was forced to jump out of the way of an unidentified vehicle while working as a flagger on the highway. She promptly reported the incident to her employer and to the insurance company, faxing the insurance company a copy of the written report that she filled out for her employer. The insurance company later denied the claim on the grounds that its policy and Pennsylvania law both require that all uninsured motorist accidents must be reported to the police.
The Pennsylvania court acknowledged that the insurance company was correct. Both the policy and the Pennsylvania automobile insurance laws require that persons who are injured or who make any claims for uninsured motorist benefits must report the accident to the insurance company within 30 days and also must report the accident to the police “or proper governmental authority” as soon as possible.
Unless you make a prompt police report, you will lose any claims you have for uninsured motorist benefits. Remember that your uninsured motorist coverage pays you for claims you have against individuals without any insurance and also for claims you have against a phantom driver who injures you and flees the scene. If a negligent driver cannot produce reliable written evidence of current insurance coverage, assume that he or she has none and treat the incident as one involving an uninsured driver.
Unless your injuries prevent you from waiting at the accident scene, you should do so, even if it seems unnecessary or annoying. Reporting the accident after leaving the scene could be deemed untimely. If no police are available to come to the scene, you should go to the police department if possible. If your injuries prevent you from staying at the scene, take all the steps you can to be sure someone else reports the incident to the police for you. Furthermore, since the law does not define any other “proper governmental authority,” it is wisest to report such incidents only to the police and to be sure to make arrangements to get a copy of the police report.
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Are owners of cars liable when they loan their cars to someone who then drives negligently? Are husbands liable for the careless driving of their wives? Mothers for their sons? What if the negligent driver is drunk or does not have a valid driver’s license?
While most people feel morally obliged to look out for the safety and welfare of others, the law has for centuries embraced the fundamental premise that the mere knowledge of a dangerous situation, even by one who has the ability to intervene, is not sufficient to create a legal duty to act. Before a person can be held legally liable for another person’s injuries, the law looks for a reason why a duty of care may be imposed. Without a legal duty of care, no legal liability for negligence exists.
Husbands, wives, sons, and daughters may share their lives and their households, but they do not share liability for each other’s negligent driving. Even if a parent or spouse has given another family member permission to use a car, and even if the parent or spouse is the title owner of the car, and even if the car is on a policy of insurance with other family cars in the parent’s or spouse’s name, the parent or spouse has no automatic liability for the unexpected negligence of the driver. Similarly, loaning a car to a friend does not make you liable for the friend’s unexpected negligent driving. Drivers themselves are liable for their careless driving.
Car owners or family members can be held liable if they negligently loan a car to someone when they have a specific reason to know that the other person may drive carelessly. Handing the keys to your intoxicated son or making your car available to your spouse for an evening of illegal drag racing are obvious examples of negligent entrustment. If you carelessly ignore any facts which clearly tell you that a friend or family member is not in the proper physical condition to drive or has specific intentions to drive dangerously, you can be held liable.
In addition, serving alcohol to minors is a crime and is a sure route to exposing yourself to liability to others. Anyone who knowingly serves alcohol to a driver under the age of 21 is liable to persons injured by the minor’s negligence while driving under the influence of alcohol.
While parents are not held directly responsible for their child’s negligent driving, parents do have some financial responsibility to contribute toward a damages award against their child. If damages are awarded to the injured claimant in a suit against a minor child, the minor’s custodial parent or parents are responsible for paying a maximum of $1,000 per injured person or $2,500 per incident. Any damages awarded against a minor over these amounts cannot be collected against the child’s parents.
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The liability of passengers is limited. Merely being present in a car with a negligent driver is not enough to make a passenger liable to others. Even riding with an intoxicated person does not make a passenger liable to others who may be injured by the dangerous driving of the driver. A passenger is liable to others only if he or she actually assists or encourages the driver to engage in unsafe behavior. Encouraging a driver to speed, or supplying a driver with drugs or alcohol while he or she is driving, can make a passenger liable to other injured persons.
Passengers are held somewhat responsible for ensuring their own safety. When a passenger knows or has reason to know that the driver may be intoxicated or otherwise unfit to drive, the passenger may be unable to recover damages for his or her own injuries. A passenger who rides with an intoxicated driver may suffer a reduction or complete elimination of the right to damages, since riding with an impaired driver may constitute assumption of the risk or contributory negligence. Central to the inquiry is whether the passenger was actually aware of the dangers.
If you loan a car to someone whom you know to be unlicensed or to be unfit or unlikely to drive safely, you can be held criminally liable. The Pennsylvania Motor Vehicle Code prescribes fines and sanctions for such careless conduct. Liability for damages to others in civil lawsuits is part of the criminal sanction—if you violate the Motor Vehicle Code by loaning a car to someone who is unlicensed or unfit, you are responsible for the injuries caused to others.
If you are injured by a negligent driver, consider promptly investigating the circumstances of his or her driving. You may be able to pursue an award of damages against someone other than the careless driver. Contact the personal injury attorneys, serving Norristown and Chester County, at The Mayerson Law Offices P.C., for assistance in evaluating your case.
See Gibson v. Bruner, 406 Pa. 315, 178 A.2d 145 (1961) (parent not responsible for son’s driving absent knowledge of son’s intoxication); Brandjord v. Hooper, 455 Pa. Super. 426, 688 A.2d 721, appeal denied, 550 Pa. 675, 704 A.2d 633 (1997) (passengers who merely participated in procurement and ingestion of alcoholic beverages did not owe duty to pedestrian); Shomo v. Scribe, 546 Pa. 542, 686 A.2d 1292 (1996) (owner who entrusts his vehicle to one he knows, or has reason to know, is unauthorized or unlicensed to drive vehicle on highway has civil liability); Breslin by Breslin v. Ridarelli, 308 Pa. Super. 179, 454 A.2d 80 (1982) (spouse not responsible for negligent driving of other spouse); Radkowski v. Nationwide Mutual Ins. Co., 36 Pa. D. & C.3d 485 (C.P. 1985) (spouse not responsible for negligent driving of other spouse); see also 75 Pa.C.S. §§ 1574, 1575 (statutory liability for unauthorized drivers).
See 23 Pa.C.S. § 5505 (liability of parents for damages awards against their children); Winwood v. Bregman, 2001 PA Super. 329, 788 A.2d 983 (2001) (social host liability); see also 18 Pa.C.S. §§ 6308-6310 (criminal liability for furnishing alcohol to minors).
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A Pennsylvania man recently sued a restaurant after he choked on a piece of chicken and was not rescued or treated by any of the restaurant employees. [See Campbell v. Eitak, Inc., 2006 PA Super. 26, 893 A.2d 749 (2006)] The patron was able to walk and speak but had difficulty breathing. The restaurant’s employees first tried to have the patron drink water and then summoned an ambulance.
The patron had to undergo emergency surgery to treat a tear in his esophagus. He later sued the restaurant and claimed that, since restaurant owners should expect that patrons may choke on food, owners should train their staff in performing the Heimlich maneuver and in the administration of general emergency treatment for people who are choking.
The Pennsylvania court dismissed the case, finding that restaurants cannot be expected to keep their staffs trained in emergency medical treatment. The court ruled that a restaurant whose employees are on notice that a customer is in distress and in need of emergency medical attention has a legal duty to come to the assistance of that customer. However, a restaurant does not have a duty to provide medical training to its food service personnel or medical rescue services to its customers who become ill or injured. A restaurant meets its legal duty to a customer in distress when it summons medical assistance within a reasonable time.
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Spectators at baseball games assume the risk of a variety of injuries — balls and even bats sometimes hit fans and can cause serious injuries. A Philadelphia Phillies fan recently tried to get around the law of assumption of the risk, but he struck out when the Pennsylvania Superior Court threw his case out. [See Loughran v. The Phillies, 2005 PA Super. 396, 888 A.2d 872 (2005)]
The spectator suffered serious eye and head injuries when he was hit by a ball thrown into the stands by a Phillies center fielder. The center fielder intentionally tossed the ball at the end of an inning, to serve as a souvenir for a lucky fan. Unfortunately, no fan caught the ball, and the injured spectator sued, claiming that, while he assumed the risks associated with the play of the game, he did not assume the risk of being hit by a ball intentionally thrown into the stands.
The court disagreed. Because professional baseball fans routinely arrive early for batting practice in hopes of retrieving an errant baseball as a souvenir, and because fans routinely battle to retrieve balls landing in the stands via home runs or foul balls, the court found that many risks occur at baseball games in connection with souvenir balls. The court also observed that both outfielders and infielders are known to toss caught balls to fans at the end of an inning.
Pennsylvania law provides that even first-time attendees at sporting events are presumed to know the customary risks that arise from sitting in the stands. Those risks are not confined to events that take place during game play, but include just about anything that can happen at a sporting event.
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