Brien Roche Law http://www.brienrochelaw.com Fri, 24 Apr 2015 18:00:25 +0000 en-US hourly 1 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.

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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.

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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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Stroke http://www.brienrochelaw.com/blog/stroke/ http://www.brienrochelaw.com/blog/stroke/#comments Mon, 20 Apr 2015 18:00:34 +0000 http://www.brienrochelaw.com/?p=9402 Stroke from Brien Roche Law

Stroke is the fourth leading cause of adult death in the United States. By 2030 nearly one in every 25 adults will suffer a stroke. Stroke: Ischemic or Hemorrhagic Most strokes can be broadly categorized as either hemorrhagic or ischemic. … Continue reading

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Stroke from Brien Roche Law

Fairfax Lawyer Brien Roche Addresses Stroke Issues

Brien Roche

Stroke is the fourth leading cause of adult death in the United States. By 2030 nearly one in every 25 adults will suffer a stroke.

Stroke: Ischemic or Hemorrhagic

Most strokes can be broadly categorized as either hemorrhagic or ischemic. Hemorrhagic strokes occur when a blood vessel ruptures, releasing blood into the brain tissue. An ischemic stroke results from reduced blood flow to the brain. Because 87% of all strokes are ischemic the medical focus is primarily on those types of strokes.

Strokes fall into four categories: resulting from injury; medication -induced; failure to recognize or treat a person about to have a stroke; negligent treatment of a person having a stroke.

As to strokes caused by injury, damage to the internal wall of an artery leading to the brain can cause a clot to form at the site of the injury. If the clot grows or a piece breaks off and travels to a smaller artery a stroke can result from the decreased blood flow to the brain. These types of injuries can result from blunt trauma to the neck or head or from rapid twisting of the neck or head as in a automobile collision.

Some people may experience increased propensity to clot due to medication they are taking. When these clots form in or travel to an artery leading to the brain a stroke may occur.

A transient ischemic attack (TIA) also called a mini stroke has the same symptoms as a stroke but goes away rapidly. They are an indication that a stroke may soon follow. One third of people who experience a TIA later experience a stroke and half of patients who suffer a stroke after a TIA do so within 48 hours.

Failure to timely treat a stroke generally involve the failure to recognize, appreciate or communicate its signs and symptoms; failure to implement treatment to restore blood flow; failure to implement treatment to prevent further interruption of blood flow. Stroke symptoms show themselves almost instantaneously when blood flow to the brain is interrupted. It is universally recognized that faster treatment improves the chance of a better outcome. The American Stroke Association maintains a information campaign stating that time lost is brain lost. Their acronym for symptoms and action is FAST: face drooping, arm weakness, speech difficulties, time to call 911.

Stroke Investigation

In investigating stroke cases it is important to determine the hospital’s stroke certifications and what promotional material it utilizes in the form of press releases or website information. It will be important to obtain the hospital policies and procedures pertaining to stroke, the criteria for activating a stroke code, the materials used to train personnel and standing orders on stroke treatment.

CT scanning is normally the first imaging done of a stroke patient. It is typically without contrast. This can be obtained rapidly and indicates whether the patient is neurologically fit for therapy that dissolves or breaks up a clot. It can take up to 24 hours for stroke to become visible on a plain, non-contrast CT. MRIs can detect brain ischemia within minutes of the onset of stroke but they are more commonly used to confirm the diagnosis. Brain scan images taken months after the stroke can be powerful exhibits as damaged brain tissue liquefies and is replaced with cerebral spinal fluid. Witnesses who have reviewed these images should be able to identify the parts of the body and bodily functions controlled by the area of the brain that the stroke appears to have damaged. These witnesses should also be able to confirm that there is no evidence of pre-existing damage on the images and that there is no known therapy that will restore these functions.

The damages that must be assessed are the loss of function, the effect on survivors, the cost of future care and future income loss.

For more information on medical malpractice see the other pages on the site. For more information on stroke see also the pages on Wikipedia.

About Brien Roche Law

Brien Roche is an experienced medical injury and medical malpractice attorney serving all of Northern Virginia, including Fairfax, McLean, Vienna, Burke, Annandale, Falls Church Reston, Centreville, Manassas, Alexandria, Herndon, Arlington, and Loudoun County. Call, or contact us for a free consultation. At Brien Roche Law, we put your interest ahead of the insurance company. You should not sign any Releases relating to your personal injury claim without having them reviewed by counsel. Likewise, you should not accept any checks from the insurance company unless you are prepared to reach a settlement with them. Typically, it is not advisable to do that until you know the full extent of your injury.

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

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Bike Injuries http://www.brienrochelaw.com/blog/bike-injuries/ http://www.brienrochelaw.com/blog/bike-injuries/#comments Sun, 19 Apr 2015 18:00:37 +0000 http://www.brienrochelaw.com/?p=9405 Bike Injuries from Brien Roche Law

Bike injuries are on the rise. In Virginia, bicyclists have the same rights as motorists. Virginia code section 46.2-800 states that every person riding a bicycle on a highway is governed by the same rights and duties as a motorist unless … Continue reading

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Bike Injuries from Brien Roche Law

Fairfax Bike Injury Lawyer Addresses Bike Injuries

Brien Roche

Bike injuries are on the rise. In Virginia, bicyclists have the same rights as motorists. Virginia code section 46.2-800 states that every person riding a bicycle on a highway is governed by the same rights and duties as a motorist unless the context clearly indicates otherwise. Virginia law does require a bike rider to ride in the extreme right side of the road. These laws are designed to promote bike safety and also prevent bike injuries.

Bike Injuries – Contributory Negligence

The most compelling challenge that a injured bike rider has in Virginia is the defense of contributory negligence. That defense can bar the claim for bike injuries. Simply put what that defense says is that if there is fault on the part of the injured party that caused the injury that may bar the claim.

At least one Virginia statute addresses the issue of contributory negligence. The statute allowing local governments to impose helmet requirements on children 14 or younger has a saving clause. Within the statute it says that the failure to wear a helmet cannot be used as evidence of contributory negligence.

A law passed in July 2014 requires motorists to pass bike riders at a reasonable speed and at least 3 feet to the left of the bike rider. The motorist is not to return to the right side of the road until safely clear of the bicyclist. There is a case law that says the motorist should not return to the original lane of traffic until the motor vehicle is 30 feet in front of the overtaken vehicle.

Bike Injuries – Assumption of Risk

Another significant defense in Virginia is assumption of the risk. If the bike rider voluntarily and knowingly assumed the risk of injury that may bar any claim. This can be seen in instances where bike rider pulls to the right of a right turning vehicle. If the bike rider knew or had reason to know the vehicle was turning right then yielding would be appropriate. Cyclists also must be sensitive to the use of turn signals when they intend to turn. The failure to use a signal may bar a claim.

Bike injuries may also involve product liability issues. For instance, misrepresentations as to the type of bike frame can lead to injury. If the biker thinks the bike is made for all-terrain use when in fact it is a city bike and injury results that may be evidence of a product defect.

For more information on bike injuries see the pages on this site and also see the pages on Wikipedia.

Contact An Experienced Bike Accident Attorney

Brien Roche represents clients in all types of vehicle accident matters or accidents involving cyclists, pedestrians and motor vehicles. Mr. Roche has secured compensation for damages to clients involved in pedestrian accidents and accidents involving bikes, trucks, cars and other vehicles. With 35 years of trial experience, Brien Roche has garnered significant compensation for our clients. For a free consultation with a bike accident lawyer, complete the contact form on this page, or contact one of our offices directly.

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Tort Law and Health Care http://www.brienrochelaw.com/blog/tort-law-and-health-care/ http://www.brienrochelaw.com/blog/tort-law-and-health-care/#comments Fri, 20 Mar 2015 18:09:19 +0000 http://www.brienrochelaw.com/?p=7679 Tort Law and Health Care from Brien Roche Law

Within the general field of health care there is a good deal of discussion of tort law and health care because tort actions comprise what are more commonly known as medical malpractice or medical negligence actions.  In medical malpractice or medical negligence … Continue reading

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Tort Law and Health Care from Brien Roche Law

Within the general field of health care there is a good deal of discussion of tort law and health care because tort actions comprise what are more commonly known as medical malpractice or medical negligence actions.  In medical malpractice or medical negligence suit is premised upon the physician or health care provider having violated some standard of care that is recognized in the medical industry.  A standard of care is simply a minimum threshold level of expertise  that the health care provider is expected to exercise in terms of providing medical services to a patient.

The standard of care does not necessarily have to be written down.  Indeed in many instances standards of care are not written down but they are recognized by health care providers as being the minimum standards that should be complied with.

In most medical malpractice actions the primary issue is exactly what is the standard of care.  The plaintiff, i.e. the party bringing the lawsuit, may contend that the standard of care is one thing.  The doctor or health care provider who is defending the case may say that either there is no standard of care or to the contrary that the standard of care is considerably less than what the plaintiff maintains it is.

In some instances there are actually written standards that are promulgated by medical specialties that define what the standard of care is.  That is fairly rare and to the extent that there are such standards or practice guidelines that are published by medical specialists such as the American College of Gynecologists, these groups expressly state that within their practice guidelines these guidelines are not intended to establish a legal standard of care but rather are simply intended to provide some guidance to their practitioners.

For more information on this topic see a book that I have written entitled Law 101 and also other articles within this website dealing with malpractice reform, hospital liability, checking out the doc, medical malpractice.

Brien Roche is an experienced health care injury lawyer serving all of Northern Virginia, including Fairfax, McLean, Vienna, Burke, Annandale, Falls Church Reston, Centreville, Manassas, Alexandria, Herndon, Arlington, and Loudoun County. Call, or contact us for a free consultation.

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Premises Liability Components http://www.brienrochelaw.com/blog/premises-liability-components/ http://www.brienrochelaw.com/blog/premises-liability-components/#comments Sat, 14 Mar 2015 11:47:42 +0000 http://www.brienrochelaw.com/?p=2761 Premises Liability Components from Brien Roche Law

Premises Liability Components Injury attorney Brien Roche reports that one thing that distinguishes premises liability claims from other types of tort claims is that the party who is injured (the plaintiff) must prove that the property owner had notice of … Continue reading

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Premises Liability Components from Brien Roche Law

Fairfax Injury Lawyer Explains Premises Liability Components

Brien Roche


Premises Liability Components

Injury attorney Brien Roche reports that one thing that distinguishes premises liability claims from other types of tort claims is that the party who is injured (the plaintiff) must prove that the property owner had notice of the defective condition on the premises. For instance, if you slip and fall on a liquid that is on the floor in the local supermarket, do you necessarily have a basis for a claim against the owner of the supermarket? You may not. You must present some evidence of how long that liquid had been on the floor. If it turns out that the liquid had only been there a short period of time and is there because of the actions of some other customer you may have a problem. That is,the property owner did not have a reasonable opportunity to see the liquid and clean it up. There may not be any negligence on the part of that property owner.

The logic of this rule is that a property owner is not a guarantor of the safety of all persons on his premises. The owner is simply required to exercise ordinary care. Obviously he can only exercise ordinary care as to those defects or deficiencies that he has some knowledge of or that he should have known of. In that same example, if you were able to prove that the liquid had been on the floor for twenty minutes, then that may be sufficient to make out a claim against the property owner. Within that period of time it could well be argued to a jury that the property owner should have known that the liquid was on the floor. Therefore he should have cleaned it up or placed signs out to warn customers of the presence of the wet floor. These premises liability components all must be satisfied to make out a claim.

Premises Liability Components – Example of Injury Claim

Let me give another example of a premises liability claim that could potentially have some merit. Suppose you are a tenant in a large apartment building. There have been a series of crimes committed resulting in serious personal injuries to the occupants. The property owner is aware of those crimes yet takes no steps whatsoever to warn other tenants of the crime wave in that building. The owner likewise takes no steps to improve security in the building. If you are subsequently assaulted and injured as a result of a person coming onto the premises for the purpose of committing a crime then you may have a claim against that property owner. It would be based upon a negligence theory. That is, the property owner knew or should have known that there was a danger to the tenants yet the property owner took no steps to either warn the tenants or to decrease the security risk to the tenants.

Premises Liability Components – Duty of Reasonable Care

Lets look at that claim from the point of view of how the four elements of a tort claim apply. The first element of a tort claim is the establishment of a duty owed by the defendant to the plaintiff. The duty in this case arises out of the relationship of the parties. That is, the property owner or the landlord owes a duty of reasonable care to persons who are lawfully on the premises. You may ask what is reasonable care?

Premises Liability Components – Breach of Duty

Quite frankly, reasonable care is essentially whatever a jury says it is. A textbook definition of reasonable care is that degree of care that a prudent person would exercise in that circumstance. If the landlord in this instance failed to take some steps to warn the tenants or persons lawfully on the premises of the criminal incidents occurring, then that may be evidence of a breach of the duty to exercise reasonable care.

Premises Liability Components – Causation

If in fact the assault in question was perpetrated by some person who was unlawfully on the premises then the third element of a tort claim has been met in that that breach of duty has been shown to be a cause of injury. The final element of premises liability components is simply that of injury or damage. In this case, the injury or damage consists of the personal injury to the plaintiff.

I handle premises liability claims involving structural design flaws, unsafe conditions, environmental hazards and a wide variety of other issues. In many cases, security related premises liability matters involve issues such as physical security standards and generally accepted security practices. In addition to any existing standards, crime statistics, event history, community standards, and specific risk considerations play a part in determining whether an adverse event was foreseeable. These are all premises liability components.

Many slip and fall cases occur in public places such as stores, restaurants, schools and office buildings. Under many circumstances, owners of homes can be found negligent for failing to follow ordinary standards of care when their negligence results in an injury.

Brien Roche is an experienced premises liability lawyer serving all of Northern Virginia, including Fairfax, McLean, Vienna, Burke, Annandale, Falls Church Reston, Centreville, Manassas, Alexandria, Herndon, Arlington, and Loudoun County. If you or someone you know has been injured on someone else’s property, contact us with questions to discuss how we can help and what are the premises liability components.

For additional information on premises liability components see also tips on premises liability claims and also the pages on Wikipedia.

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

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Corporate Officer Liability http://www.brienrochelaw.com/blog/corporate-officer-liability/ http://www.brienrochelaw.com/blog/corporate-officer-liability/#comments Mon, 23 Feb 2015 19:02:50 +0000 http://www.brienrochelaw.com/?p=9392 Corporate Officer Liability from Brien Roche Law

Corporate officer liability may be a way of casting a bigger net.  By casting a bigger net I mean attempting to better protect an injured plaintiff from the misdeeds of a corporation.  A corporation can only act through its officers and agents. … Continue reading

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Corporate Officer Liability from Brien Roche Law

Fairfax Personal Injury Lawyer Addresses Corporate Officer Liability

Brien Roche

Corporate officer liability may be a way of casting a bigger net.  By casting a bigger net I mean attempting to better protect an injured plaintiff from the misdeeds of a corporation.  A corporation can only act through its officers and agents.  To put it another way a corporation can only act through its employees or agents.Those employees or agents may be officers or directors and they may be liable for the actions of that corporation just as the corporation is liable.

Corporate Officer Liability-Business judgment Rule

There exists what is called the “business judgment rule”.  The rule is generally thought of as being a presumption.  That presumption is that in making a business decision, the directors of a corporation have acted on an informed basis and have acted in good faith.  It is further presumed that they acted in the honest belief that the action that they are taking was in the best interest of the company.  This rule was designed to protect corporate directors from liability for business decisions.  Any attempt to hold the directors liable must establish that the directors acted with actual knowledge of the wrongdoing.

A question arises as to whether or not that business judgment rule should also be applied to corporate officers.  Officers are people who hold positions such as President, Vice President, Secretary and Treasurer.  The directors are the members of the board of directors.

In general the business judgment rule does not apply to corporate officers i.e. it does not reduce or minimize corporate officer liability.  For instance in the case of FDIC v. Perry, a bank’s chief executive officer was alleged to have negligently permitted the production of a pool of more than $10 billion in risky, residential loans that were intended for sale in the secondary market.  Those bad loans caused the bank to lose $600 million.  The bank eventually closed.  The FDIC became involved and the FDIC sued the former CEO.  The allegation was that the CEO had violated fiduciary duties owed to the bank. It was further alleged that the CEO acted in a negligent fashion.  That is, he allowed the bank to create and also purchase risky loans for sale.  The CEO moved to dismiss the lawsuit.  The Motion to Dismiss was based upon the business judgment rule.  The court in that case held that the Motion to Dismiss should be denied.  The court agreed with the FDIC that the business judgment rule does not apply to corporate officers.  In so concluding, the court noted that no judicial decisions in that state, California, apply the business judgment rule to minimize corporate officer liability.  Another federal court applying federal law in FDIC v. Florescue applied the same principle.

As such it appears that unless a state has extended the business judgment rule to minimize corporate officer liability by statute, it does not apply to them.  The tendency is for courts on their own to not extend the business judgment rule to officers.  By its definition it is limited to directors.

Corporate Officer Liability-Virginia

In Virginia there is no statute that extends the business judgment rule to reduce or minimize corporate officer liability except those employed with what is called a benefit corporation.

For more information on personal injury claims, see the other pages on this site.  Also see the pages on Wikipedia for information on the business judgment rule.

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Injury Claim Mistakes http://www.brienrochelaw.com/blog/injury-claim/ http://www.brienrochelaw.com/blog/injury-claim/#comments Fri, 06 Feb 2015 18:00:09 +0000 http://www.brienrochelaw.com/?p=9385 Injury Claim Mistakes from Brien Roche Law

Injury claim mistakes by the claimant can undermine any claim.  There are many elements to a personal injury case.  There likewise are countless ways that a truly injured person can harm his or her own case.  This harm may come … Continue reading

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

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Injury Claim Mistakes from Brien Roche Law

Injury claim mistakes by the claimant can undermine any claim.  There are many elements to a personal injury case.  There likewise are countless ways that a truly injured person can harm his or her own case.  This harm may come through mistake or it may be the result of the claimant thinking that he or she knows what is best for her case when in fact that is not so.

Some of those common injury claim mistakes are the following:

  1. Gaps in treatment.  One thing that insurance adjusters look for routinely in injury claims is whether or not there is a gap in treatment.  For instance if after the collision you go to the emergency room and then do not seek any further treatment for two (2) months, that gap in treatment is going to be focused on.  The insurance adjuster is going to claim that you must have recovered from the injury otherwise you would have sought more immediate treatment following the emergency room visit. The point to be made is that you should not be seeking treatment if you do not need it.  However if you do need it, you need to seek treatment and it needs to be continuous.  If there are gaps in treatment, that is going to hurt your case.
  2. Another common injury claim mistake is misstating the facts.  When you go to the emergency room or when you go to see a doctor, typically you are going to be asked what happened.  You need to state consistently what happened.  Facts are facts.  Do not be adding to those facts.  Do not be subtracting from those facts.  What is so often seen in medical records is that the injured party will report in the emergency room that the striking vehicle was going 5 miles per hour and then days later at the time of the first doctor’s visit, suddenly that speed is increased to 40 miles per hour.  You need to set in your mind what the facts are and those facts should remain consistent.
  3. Another injury claim mistake is the failure to follow the recommended treatment advice.  If your treating doctor recommends that you go to see a neurosurgeon, then you need to go see a neurosurgeon.  If your treating doctor recommends that you do home exercises, then you need to do those exercises.  If you fail to do that, then the claims adjuster defending your case is going to seize on that and use that as a basis for diminishing your claim.
  4. Another common injury claim mistake is that of exaggerating or minimizing your symptoms.  Your symptoms are your symptoms.  If you have intense back pain then it should be described as being intense back pain.  If your back pain has changed from day to day then you need to point that out to the treating physician.  This does not mean that all of those comments are going to be accurately reported but at least it means that you are reporting what you know.  A common problem in this regard is that some people minimize their symptoms.  Other people may exaggerate their symptoms.  Either way, this practice is going to hurt you in terms of pursuing a claim.  Again you need to simply stick with the facts.
  5. Another injury claim mistake is that of signing away your rights.  Insurance adjusters frequently will show up on your doorstep within days of a collision/injury wanting to either take a recorded statement from you or to get you to sign a medical authorization.  Sometimes they will even wave a check in front of you and try to get you to sign a release of all claims.  You need to be careful that you know what you are doing.  As a general rule you do not want to settle a personal injury claim until you have either recovered 100% or gotten as well as you are going to get.  If you are contemplating hiring an attorney, you should not be dealing with a claims adjuster about anything.  In particular you should not be giving any recorded statements.  Claims adjusters, in their own way, attempt to be honest but they have a habit of asking leading questions when they are taking a recorded statement.  A leading question is one that suggests what the answer is.  In doing that they frequently wind up getting the injured party so say something they did not mean.  Once they have a recording reflecting that then at that point your case has been jeopardized.
  6. Pursuing chiropractic care can in some instances be an injury claim mistake.  I am not a big fan of chiropractic care.  Insurance adjusters tend to look closely at chiropractic care.  Many chiropractors have a practice of over treating.  They can quickly run up a huge bill and the insurance company will then contest the reasonableness of the bill.  If you are going to pursue chiropractic care, you need to advise your attorney of that before beginning that care.  You need to also be conscious of the fact that chiropractic care like physical therapy should be of a focused duration.  Chiropractic care that goes on for weeks or months is generally going to be challenged by the insurance company as far as the reasonableness of the care.

Filing a personal injury claim can involve complex legal issues.  Injury claim mistakes may result in the loss of certain legal rights.

For more information about personal injury claims see the other pages on this site.  In regards to personal injury in general see the pages on Wikipedia.

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

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