Brien Roche Law http://www.brienrochelaw.com Tue, 11 Aug 2015 11:03:54 +0000 en-US hourly 1 Expert Witnesses DC http://www.brienrochelaw.com/blog/expert-witnesses/ http://www.brienrochelaw.com/blog/expert-witnesses/#comments Fri, 05 Jun 2015 18:00:07 +0000 http://www.brienrochelaw.com/?p=9424 Expert Witnesses DC from Brien Roche Law

Expert witnesses in Washington DC are governed by the Frye case. Frye holds that expert testimony may be admitted if the scientific principles are sufficiently established to have gained general acceptance in the field in which they belong. The US … Continue reading

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Expert Witnesses DC from Brien Roche Law

Fairfax Injury Lawyer Brien Roche Addresses Expert Witnesses

Brien Roche

Expert witnesses in Washington DC are governed by the Frye case. Frye holds that expert testimony may be admitted if the scientific principles are sufficiently established to have gained general acceptance in the field in which they belong. The US Supreme Court rejected that standard for expert testimony 20 years ago.

Expert Witnesses-Federal

In federal courts the general standard is that the state of the pertinent art or scientific knowledge permits a reasonable opinion to be asserted i.e. there must be scientific reliability. The federal court must assess whether the reasoning or methodology underlying the testimony is scientifically valid. Scientific validity is a function of whether the theory or technique has been tested, whether it has been subjected to peer review, what the error rate is and whether the theory or technique finds general acceptance in the relevant community.

Expert Witnesses-DC

The Daubert case sets forth the federal principles. The Frye case is expected to be reviewed by the DC Court of Appeals. The most likely outcome is the adoption of the Daubert standard.

For more information about expert testimony see the other pages on the site and also see the pages on Wikipedia dealing with experts.

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Pedestrian Collisions http://www.brienrochelaw.com/blog/pedestrian-collisions/ http://www.brienrochelaw.com/blog/pedestrian-collisions/#comments Tue, 12 May 2015 18:00:31 +0000 http://www.brienrochelaw.com/?p=9421 Pedestrian Collisions from Brien Roche Law

Pedestrian collisions most often have an unfavorable outcome for the pedestrian. The number of pedestrians killed on US roadways has increased dramatically over the last five years. A total of 4735 pedestrians were killed in motor vehicle accidents in 2013. … Continue reading

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Pedestrian Collisions from Brien Roche Law

Fairfax Injury Lawyer Brien Roche addresses pedestrian collisions

Brien Roche

Pedestrian collisions most often have an unfavorable outcome for the pedestrian. The number of pedestrians killed on US roadways has increased dramatically over the last five years. A total of 4735 pedestrians were killed in motor vehicle accidents in 2013. The numbers for 2014 are almost equivalent.

Pedestrian Collisions-Walking Can Be Safe

Walking has been heavily promoted in recent years as a way to reduce health risks, obesity and greenhouse gases. Four of the heavily populated states accounted for 43% of pedestrian deaths. Delaware and Florida have the highest per capita pedestrian death rate.

Pedestrian Collisions-Six Factors

The six factors that appear to be most related to pedestrian deaths are:

    Age. Pedestrians 70 or older have the highest per capita crash rate of any age group. This is a very vulnerable group that must be protected much the same as we protect children.
    Gender. About 70% of pedestrians killed in vehicle crashes are males.
    Time of day. Most deaths are in the evening after 6 PM.
    Alcohol. More than a third of pedestrians in the year 2013 who were 16 or older involved in fatal crashes had blood alcohol concentrations of .08 or higher.
    Distractions. A survey by Liberty Mutual Insurance indicated that 60% of pedestrians were doing other activities while walking such as texting or talking on a cell phone.
    Driver speed. Driver speed increases the potential for death. With that in mind many jurisdictions have decreased the speed limit in congested areas.

Some safety measures begun by localities are such things as pedestrian safety islands, longer pedestrian signal timing and more visible crosswalks. Increased education on pedestrian safety is also critical. Pedestrian rights and pedestrian safety must be emphasized with young drivers and inexperienced drivers. Without this, pedestrian collisions will simply continue to rise.

For more information on pedestrian accidents see the other pages on the site and also see the pages on Wikipedia.

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Federal Tort Claims Cases http://www.brienrochelaw.com/blog/federal-tort-claims-cases/ http://www.brienrochelaw.com/blog/federal-tort-claims-cases/#comments Mon, 11 May 2015 18:00:27 +0000 http://www.brienrochelaw.com/?p=9419 Federal Tort Claims Cases from Brien Roche Law

Federal tort claims cases are based on a limited waiver of immunity by the federal government. The waiver applies to negligence actions brought against a US employee acting in the scope of employment. The individual employees are not liable. The … Continue reading

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Federal Tort Claims Cases from Brien Roche Law

Fairfax Injury Lawyer Brien Roche Addresses Federal Tort Claims Cases

Brien Roche

Federal tort claims cases are based on a limited waiver of immunity by the federal government. The waiver applies to negligence actions brought against a US employee acting in the scope of employment. The individual employees are not liable. The only proper defendant is the United States. Two potential hurdles with federal tort claims cases are identifying the correct defendant and bringing the action in a timely fashion. Active-duty military doctors and uniformed letter carriers driving US postal trucks are federal employees. The doctor in civilian clothes at a VA hospital however may not be a federal employee. The doctor may be a contractor. Contractors are not federal employees and the United States is not liable for their negligence. Personal services contracts may bring persons within the scope of employment of the federal government if it is clear that the employer/employee relationship is being created. Only a minority of contractors fit into this personal services category.

Federal Tort Claims Cases: Contractor or Employee

in investigating your case it is important to gather all of the relevant contract documents. Even if the documents say the person is a contractor the practice may be different. The critical question is control. That is, to what extent does the federal government control the outcome and the performance of that person. Relevant considerations are the parties intent, control over the manner and method of performance, whose tools are being used, who provides liability insurance, who pays social security taxes, whether federal regulations prevent employees from performing these tasks and whether the person has the authority to subcontract.

In the case of medical doctors they frequently are contractors because ethically the government cannot control their performance. That is the doctor must exercise independent judgment. In regards to medical claims it is important to also be sensitive to the possibility of a federal employee working within a local or state complex. This is seen most often in regards to medical facilities. Certain federally funded clinics operating as local or state facilities have within their ranks contractors who may be deemed to be federal employees for purposes of federal tort claims cases.

Federal Tort Claims Cases-Statutes of Repose

Another significant hurdle in federal tort claims cases is any applicable statute of repose. Statutes of repose impose an absolute deadline for the filing of certain claims. In Virginia they typically only apply to construction claims. In other states that may apply to medical malpractice actions and negligence actions in general. These statutes of repose may not factor in periods of time allowed under the federal statute for filing an administrative claim.

For more information on federal tort claims cases see the other pages on this site and also see the pages on Wikipedia.

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Chronic Pain Treatment http://www.brienrochelaw.com/blog/chronic-pain-treatment/ http://www.brienrochelaw.com/blog/chronic-pain-treatment/#comments Mon, 04 May 2015 18:00:14 +0000 http://www.brienrochelaw.com/?p=9415 Chronic Pain Treatment from Brien Roche Law

Chronic pain treatment can be complicated. Chronic pain affects more people than cancer, diabetes, heart attack and stroke combined. There are more than 100 million sufferers in the United States. It cost the nation as much as $635 billion per … Continue reading

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Chronic Pain Treatment from Brien Roche Law

Fairfax Injury Lawyer Brien Roche Addresses Chronic Pain Treatment

Brien Roche

Chronic pain treatment can be complicated. Chronic pain affects more people than cancer, diabetes, heart attack and stroke combined. There are more than 100 million sufferers in the United States. It cost the nation as much as $635 billion per year in medical treatment and lost productivity. Chronic pain sufferers often are misdiagnosed, misunderstood and miserable.

Chronic Pain Treatment: The Right Blend

The good news is that chronic pain treatment can work. It requires the right blend of approaches. The traditional model of medication and rest is not sufficient. Drugs frequently rather than relieving the pain actually make it worse. What is required is the right blend of physical therapy, weaning off addictive medications and counseling.

It is not unusual for people to feel acute pain after an injury or illness. If the pain last more than 12 weeks it is considered chronic pain. With the prolonged use of pain medication the nervous system becomes distorted. Pain receptors get amplified and internal pain blockers are minimized. This can make the lightest touch seemed painful. Chronic pain is frequently associated with depression which can then lead to fatigue, anxiety and changes in mood, appetite and sleep. Patients with depression can experience increased pain because of the overlap between pain reception and mood regulation. Both depression and chronic pain share some of the same neurotransmitters and nerve pathways. As a result the pain gets worse, the function is poor and the response to pain is reduced. The key is to get the depression under control. Antidepressant medication can provide some relief and can be an important part of chronic pain treatment.

Chronic Pain Treatment: The Right Medicines

The extended use of strong addictive medications such as opioids or Percocet and Valium actually make the pain worse. These medications block the transmission of pain from the site to the brain. Over time the nerves send stronger pain signals. It’s like the nerves turning up the volume in order to get the attention of the brain. Higher doses of medication are therefore required to block the louder signals. The pain receptors and processors get so distorted that eventually most stimuli are perceived as pain and these medications are no longer working. What is needed is a holistic approach which includes getting off the ineffective medications, applying useful pharmaceuticals, incorporating physical therapy and beginning careful exercise to teach the damaged nerves the difference between normal and harmful sensations. The patient must be committed to engaging in helpful actions such as problem-solving, avoiding isolation, improving communication, embracing physical therapy and working with a counselor to reframe the illness. Support groups can be a big help in this regard.

For more information on medical issues see the other pages on the site and also see the pages on Wikipedia

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Medical Records Technology http://www.brienrochelaw.com/blog/medical-records-technology/ http://www.brienrochelaw.com/blog/medical-records-technology/#comments Sun, 03 May 2015 18:00:08 +0000 http://www.brienrochelaw.com/?p=9414 Medical Records Technology from Brien Roche Law

Medical records technology is changing the practice of medicine. It is also changing the physician patient relationship. In the past when patients asked for a copy of their medical records they were looked at askance. Today many in the healthcare … Continue reading

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Medical Records Technology from Brien Roche Law

Fairfax Injury Lawyer Brien Roche Addresses Medical Records Technology

Brien Roche

Medical records technology is changing the practice of medicine. It is also changing the physician patient relationship. In the past when patients asked for a copy of their medical records they were looked at askance. Today many in the healthcare field encourage patients to maintain a close eye on their medical records. Not only to be informed but also to confirm accuracy. This is now possible with electronic access to records. With the Open Notes systems patients can see not only lab results but the full notes of their physician.

Medical Records Technology: Smart Phones

Smart phones can also be a mechanism for enhanced treatment. Biosensors can pick up blood pressure, respiration, heart rate, glucose level, brain waves and more. Some providers actually allow diabetics to connect glucose monitors to the patient’s computer to generate data for the provider.

In communicating with your doctor electronically it is important to use secure messaging. Anything of an urgent nature should be dealt with through an office visit. Likewise communications that involve more than a few paragraphs or that will involve much back and forth should be covered through an office visit.

Medical Records Technology: Ask Questions

Being aware of what is in your medical records allows you to keep the physician better informed as to your condition. It also allows you to stay focused on what the care plan is. Sometimes in dealing with your physician you may have to be the squeaky wheel. If the care plan does not make sense you need to question it. If the lab results don’t seem consistent with the treatment plan you need to ask questions. If something about the care plan does not feel right then likewise you need to bring this to the attention of the doctor.

Medical records technology can help improve your knowledge base and also can improve the quality of care. Some sites that may help you are nlm.nih.gov/medlineplus/healthtopics.html and caphis.mlanet.org.consumer.

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Lost Profit Claims http://www.brienrochelaw.com/blog/lost-profit-claims/ http://www.brienrochelaw.com/blog/lost-profit-claims/#comments Mon, 27 Apr 2015 18:00:45 +0000 http://www.brienrochelaw.com/?p=9411 Lost Profit Claims from Brien Roche Law

>Lost profit claims can be challenging in terms of proof. These types of claims arise most often when the plaintiff is either a small business person or is self-employed. A good example would be a real estate agent. These agents … Continue reading

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Lost Profit Claims from Brien Roche Law

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Fairfax Injury Lawyer Brien Roche Explains Lost Profit Claims

Brien Roche

Lost profit claims can be challenging in terms of proof. These types of claims arise most often when the plaintiff is either a small business person or is self-employed. A good example would be a real estate agent. These agents are associated with a broker but are deemed to be independent contractors. That is, they are self-employed.

Lost Profit Claims-Track Record Critical

What is critical in these types of cases is the track record. That is has the plaintiff been working in this field for some period of time. In one reported case the plaintiff was a delivery salesman who as a result of the injury was caused to work more slowly. This resulted in a decrease in income. Plaintiff in this case was claiming future damages. The court held there was sufficient evidence to allow a jury to decide whether this permanent injury would in fact result in a decrease in income.

In another reported case the traveling salesman claimed loss of past earnings and future earnings. Evidence showed what his earnings were prior to the injury and the decrease after the injury. All of this was admissible in support of the earnings claim.

Lost Profit Claims-Before and After

There is no clear rule as to the amount of time that prior earnings must be established in lost profit claims. Certainly the longer the track record the better. Documentary evidence such as W-2s, tax returns and other solid proof of earnings are important. In a New York case the court held that in the absence of specific losses, the proper measure of lost earnings by a salesman would be determined by multiplying the time lost by the difference between his average net earnings for the applicable time prior to the injury and his average net earnings for the same time period during which his disability continued.

The same before and after evidence can be used in obtaining lost income damages for small business. The threshold question is whether the business is a sufficiently small business that is dependent on the effort, personal attention and services of the plaintiff to justify using the lost profit of the business as evidence of the lost income of the plaintiff. There are a number of Virginia Circuit Court decisions that support this theory.

Where a wrongdoer creates a situation that makes proof of the exact amount of damages difficult juries should be allowed to act upon probable and inferential evidence as well as direct and positive proof. Virginia code section 8.01-221.1 allows damages for lost profits of new or recently established businesses where there is proper proof except in personal injury or wrongful death cases.

For more information on lost profit claims and damage claims see the other pages on the site and also see the pages on Wikipedia

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Smoke Alarm Failures http://www.brienrochelaw.com/blog/smoke-alarm-failures/ http://www.brienrochelaw.com/blog/smoke-alarm-failures/#comments Fri, 24 Apr 2015 18:00:25 +0000 http://www.brienrochelaw.com/?p=9409 Smoke Alarm Failures from Brien Roche Law

Smoke alarm failures are highly dependent on the type of smoke alarm in use. The two most common types of smoke alarms are photoelectric and ionization. A photoelectric alarm is activated by smoke. Smoke is generated principally by smoldering fires. … Continue reading

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Smoke Alarm Failures from Brien Roche Law

Fairfax Injury Lawyer Brien Roche Addresses Smoke Alarm Failures

Brien Roche

Smoke alarm failures are highly dependent on the type of smoke alarm in use. The two most common types of smoke alarms are photoelectric and ionization. A photoelectric alarm is activated by smoke. Smoke is generated principally by smoldering fires. The ionization alarm is best for detecting flaming fire. Ionization alarms are less expensive than photoelectric. Ionization alarms represent up to 95% of all alarms sold. If an ionization alarm does sound in a smoking fire it usually takes 30 minutes or longer to sound than a photoelectric alarm.

Smoke Alarm Failures-UL 217

Manufacturers defend ionization alarms saying they are approved by Underwriters Laboratories. What they do not tell you is that the UL Standard 217 was devised in the 1970s when most homes had furniture made of cotton. Furniture in most homes today is made of synthetic materials such as polyurethane. This is an oil-based product that gives off a large amount of smoke. Most people who die in smoldering fires die of smoke inhalation. The UL standard 217 test is simply not adequate for most fatal residential home fires.

Manufacturers admit that smoke alarm failures most often consist of not responding to smoke. Most consumer complaints relate to this same issue. These types of consumer complaints may be admissible at trial. To be admissible these complaints must precede the date of the fire. The characteristics to look for in these types of complaints are whether they involved ionization alarms, was your defendant the designer or manufacturer, did the smoke reach the alarm, there is no deficiency in the alarm, the manufacturer received notice of this complaint before your fire, the manufacturer inspected the alarm and found no deficiency, the alarms all passed UL 217 and the defect alleged in the other complaint is the same as in your case.

Any differences in the circumstances surrounding the other complaints go to the weight of the evidence and not its admissibility.

Smoke Alarm Failures-Defective Design

In smoke alarm failures the best claim is defective design. All ionization alarms are defective in design because of the difficulty they have in detecting smoke. Another claim to be asserted is failure to warn. This type of claim makes prior complaints more likely to be admissible. Most renters move into a new apartment or home do not check smoke alarms. They probably have never read the packaging. The smoke alarm itself typically has no warning on it. All of this may be the basis for a failure to warn claim.

In evaluating smoke alarm failures it is critical to know where the alarms were located, were there working batteries in the alarm, were the occupants awake or asleep, did the alarm actually sound. If you’re lucky enough to have the alarms as evidence this may well be what makes your case.

For more information about fire cases see the other pages on the site and about smoke alarms see the pages on Wikipedia.

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Product Liability Injury http://www.brienrochelaw.com/blog/product-liability-injury/ http://www.brienrochelaw.com/blog/product-liability-injury/#comments Thu, 23 Apr 2015 18:00:44 +0000 http://www.brienrochelaw.com/?p=9408 Product Liability Injury from Brien Roche Law

Product liability injury cases must be thoroughly reviewed as part of the evaluation process. Gathering information about the product may consist of looking at FDA recalls, market withdrawals, safety alerts and warning letters issued to manufacturers. www.recalls.gov offers information and … Continue reading

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Product Liability Injury from Brien Roche Law

Fairfax Injury Lawyer Brien Roche addresses product liability injury.

Brien Roche

Product liability injury cases must be thoroughly reviewed as part of the evaluation process. Gathering information about the product may consist of looking at FDA recalls, market withdrawals, safety alerts and warning letters issued to manufacturers. www.recalls.gov offers information and subscription services about recalls for consumer products, vehicles, food, medicine and environmental products. Consideration must be given to whether federal preemption may apply. In addition the financial viability of the defendant must be considered. The medical literature must be reviewed to assess the chances of proving causation between the product and the injuries incurred. It is worthwhile also to determine if other law firms are accepting cases of this nature. If so, consideration should be given to either making a referral or teaming up with that other firm.

Product Liability Injury Cases: Three Categories

In looking at the product it is critical to determine what is its intended use and what is its actual use. Product liability cases fall into three categories: manufacturing, design and failure to warn.

Product Liability Injury Cases-Causation

In looking at the issue of causation you must determine if the product is capable of causing the injury in question and did it cause the injury in question. To answer those questions you need a thorough understanding of the mechanism of injury.

The applicable statute of limitations must also be determined. In Virginia that limitation typically is two years. The tricky part is determining when two years began to run. It is conceivable under Virginia law that a claim may be time-barred before the plaintiff even knows that a claim exist. Virginia is a jurisdiction where the limitation period begins to run when any injury is incurred. It is conceivable that a plaintiff may have suffered some injury without even knowing it. In addition consideration must be given to giving notice to seller of the product of the alleged defect. This may be required for warranty claims.

Product liability injury cases can be rewarding, challenging and satisfying. The key to success is careful case analysis, client evaluation, causation determination and assessment of the scope of damage.

For more information on product liability injury see the other pages on the site and also see the pages on Wikipedia.

for more personal injury news and views visit, Brien Roche Law

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Pedestrian Injury Cases http://www.brienrochelaw.com/blog/pedestrian-injury-cases/ http://www.brienrochelaw.com/blog/pedestrian-injury-cases/#comments Wed, 22 Apr 2015 18:00:13 +0000 http://www.brienrochelaw.com/?p=9406 Pedestrian Injury Cases from Brien Roche Law

In Virginia in 2012 100 pedestrians were killed and another 1862 pedestrians were injured. Pedestrian injury cases require a thorough inspection of the scene. Google Maps may give you an overview of the scene. There is no substitute for visiting … Continue reading

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Pedestrian Injury Cases from Brien Roche Law

Fairfax Injury Lawyer Brien Roche addresses pedestrian injury cases.

Brien Roche

In Virginia in 2012 100 pedestrians were killed and another 1862 pedestrians were injured. Pedestrian injury cases require a thorough inspection of the scene. Google Maps may give you an overview of the scene. There is no substitute for visiting the scene with your client. Photographs of the area from all angles are a must. Measurements of the roadway and the distance from all pertinent structures must be taken. Having your client with you for this inspection is critical. Ideally the inspection should take place on the same day of week and time as the collision.

Pedestrian Injury Cases-Statutes

There are several Virginia statutes that may apply. Section 46.2-923 requires that pedestrians cross at intersections or marked crosswalks wherever possible. Where intersections do not contain marked crosswalks a pedestrian shall not be guilty of contributory negligence as a matter of law for crossing at such intersection or crossing between intersections when crossing by the most direct route. Section 46.2-924 requires drivers to yield to any pedestrian crossing at a clearly marked crosswalk, at any regular pedestrian crossing included in the prolongation of the lateral boundary lines of the adjacent sidewalk at the end of a block, or any intersection where the legal maximum speed does not exceed 35 mph. There are number of other code sections that deal with pedestrian crossing.

Pedestrian Injury Cases-Case Law

The case law on pedestrian injury cases is varied. Some general principles that stand out are:
-the duty of lookout is not an absolute duty on the part of the pedestrian but rather is a duty of care to see what is there to be seen;
-motorists must exercise greater degree of vigilance at intersection because pedestrian has superior right;
-pedestrian crossing with traffic light has right-of-way which continues if light changes while pedestrian crossing;
-where pedestrian has right-of-way it puts necessity of continuous observation on motorist;
-where minor pedestrian is present then driver must increased vigilance recognizing that child may engage in unpredictable behavior.

For more information on pedestrian injury cases see the other pages on this site and also see the pages on Wikipedia.

for more personal injury news and views visit, Brien Roche Law

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Snow and Ice Cases http://www.brienrochelaw.com/blog/snow-and-ice-cases/ http://www.brienrochelaw.com/blog/snow-and-ice-cases/#comments Tue, 21 Apr 2015 18:00:40 +0000 http://www.brienrochelaw.com/?p=9396 Snow and Ice Cases from Brien Roche Law

  Snow And Ice Cases-Motorists Snow and ice can present a host of different legal problems.  Snow and ice cases from an automotive point of view present interesting issues as to the presence of contributory negligence.  Contributory negligence can be a … Continue reading

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Snow and Ice Cases from Brien Roche Law

 

Fairfax Injury Lawyer Brien Roche Discusses Snow and Ice Cases

Brien Roche

Snow And Ice Cases-Motorists

Snow and ice can present a host of different legal problems.  Snow and ice cases from an automotive point of view present interesting issues as to the presence of contributory negligence.  Contributory negligence can be a bar to a plaintiff’s claim.  Snow and ice cases from that point of view need to be looked at closely.  Snow and ice on the roadway means that motorists must exercise increased caution.  If that increased caution is not exercised, that may be contributory negligence.

Snow and Ice Cases-Pedestrians

From the point of view of a pedestrian or person who is walking on another person’s premises, snow and ice cases must be looked at from a point of view of reasonableness.  That is, has the property owner acted in a reasonable fashion in terms of clearing the snow and ice.  If the property owner’s conduct in that regard is not reasonable then that may be a basis for a negligence claim.  The defense that may be asserted in that type of case may be either contributory negligence or assumption of risk.  Assumption of risk simply means that the plaintiff recognized that there was a risk and chose to assume it.

The mere fact that somebody is walking on a pathway that is covered with snow and ice is not necessarily assumption of risk in all cases.  It may be an assumption of risk if the plaintiff had some alternative path to follow.  If there was no alternative path to follow and the plaintiff was out during these inclement conditions out of necessity, any defense of assumption of risk may be defeated.

In general a defendant may wait a reasonable period of time after a storm is finished before removing snow and ice from its premises.

In most cases the issue of whether or not the plaintiff has assumed the risk is going to be a question for a jury to decide.  The mere fact that the plaintiff saw the snow and ice does not mean that the plaintiff fully appreciated the extent of the danger.

In many instances the ice may be what is referred to as “black ice”.  Black ice implies that the ice itself is not visible because it is on a black surface.  In some instances however the ice may be on a concrete surface which may be tan or white in color.  Either way the ice may not be visible.  If the property owner knew or should have known of the presence of the ice and a reasonable period of time had passed since the last precipitation which caused the ice, then the property owner may be guilty of negligence.

For a study of various cases dealing with snow and ice, see the page on this site that constitutes a compilation of snow and ice cases.

See also the page on Wikipedia dealing with premises liability.

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