October 22, 2017

Reasonable Care In Personal Injury

An action in negligence requires a showing that a defendant owed a plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of the injuries the plaintiff suffered. The fact that a dangerous condition on premises exists at the time an accident occurs, does not warrant an inference that the owner or his employee acting within the scope of employment was negligent. Where the condition complained of is brought about by ordinary usage or by third persons, there must be evidence to establish that the condition existed long enough for the owner or his employee, in the exercise of reasonable care, to discover the condition and correct it.

For example, defendant acts as an agent when it inspects and services time share units. Defendant does not have actual or constructive notice of any defects in a shower door prior to a personal injury incident involving plaintiff. In fact, the shower door worked properly on numerous occasions prior to plaintiff’s stay. A family who occupies the unit before plaintiff, took many showers without any problems with the shower door. There were no complaints from the maid who cleaned the unit before the plaintiff’s occupancy or occupants prior to plaintiff’s stay. Defendant reasonably maintained the property by making daily property walks and inspections, responding promptly to repair requests, and enacting a procedure for recording maintenance reports. Because there is no liability for injury from dangers where an owner or his employee lacks notice, defendant does not breach its duty of reasonable care in its operation of the property, and its maintenance of the property such that it would not be in a reasonably safe condition.

If defendant is found liable for a plaintiff’s alleged damages, it may deny the extent of alleged injuries. The defendant disputes the plaintiff’s damages by reviewing medical expenses, employment records, and restricted activities from injuries.

With respect to physical injuries, the defendant may demand the plaintiff go through an independent medical examination. For example, someone may complain of leg pain and weakness, but an independent medical examination may reveal that the plaintiff demonstrates a normal gait, without a limp. The injury damages may not be much if the person is able to walk on heels and toes. As to back injuries, an independent medical examination may indicate that the plaintiff shows back pain, however, when standing, the pelvis is normal and the spine is straight. The rotation and hip range motion may be normal, and lateral bending is normal.

The defendant may look into past medical records, and a plaintiff’s deposition testimony, to reveal that plaintiff was disabled from work or other activities previously. All this decreases the damages amount.

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