Philadelphia Injury Attorney Blog

When someone gets injured on another’s property—whether it be a business, public, or residential site—the stakes can be very high, especially when the property owner is deemed negligent and the victim is seriously hurt. A property owner has an obligation to keep the premises in safe condition and free of hazards. But, all too often, balconies and railings are overlooked. Given that falls from balconies are generally quite serious, and often lead to catastrophic injuries, the awards for such premises liability cases can be very high indeed.

Recently, a 25-year old motel guest fell 12 feet from the balcony of a second story motel room, while a guest at the motel. The victim contended that the motel maintained the property in a negligent fashion, and that the railing was dangerously low—in violation of the building code. The defense denied that the victim was a motel guest, and presented expert testimony that his injuries were consistent with a ground-level backwards fall. The defense also argued that the victim’s blood alcohol level was .267 at the time of the accident. The plaintiff presented evidence that his mother had come to the motel the day after the accident, and retrieved his personal belongings—which, he alleged, proved that he was a guest at the motel. The plaintiff admitted that he had been intoxicated at the time, had struggled with alcoholism, and was partly responsible for the fall. However, his attorneys argued that this did not excuse the motel’s non-compliance with the building code.

As a result of the fall, the plaintiff was severely injured. He was diagnosed with four skull fractures and a traumatic brain injury (TBI), and had to be placed in a coma for three weeks to be treated for brain swelling and internal bleeding. He sustained brain tissue death, resulting in traumatic dementia. Though he is able to speak, and can understand and process visual information, he has trouble responding, owing to extreme anxiety. He has difficulty planning, and suffers from problems with memory, concentration, and behavior control.

The victim was awarded an extremely large settlement—38 million dollars—owing to the fact that the owner had failed to correct a serious safety hazard, and to fulfill his duty of care to a hotel guest. It is always a property owner’s obligation to keep his premises in a safe condition.

If you or a loved one has been injured from a slip or fall caused by the inadequate safety of someone else’s property, you should contact a premises liability attorney with specialized expertise and a track record of achieving large settlements in such cases. Moreover, you should do so immediately, in order to preserve vitally important evidence.

Jeffrey Reiff has decades of experience as a premises liability attorney, and is a contributing member of the National Brain Injury Trial Lawyers Association. He has consistently been named one of the Top Attorneys in Pennsylvania by Super Lawyers, and has been recognized by National Trial Lawyers as a member of the Top100 Trial Lawyers. He has also been nominated as one of the Top 100 Attorneys in Pennsylvania.

On Saturday, February 23rd, a horrific crash occurred during the NASCAR Nationwide Series race at the Daytona International Speedway, when driver Kyle Larson’s 32 race car went airborne, resulting in a 12-car pileup. According to news sources, at least 28 spectators were injured when the car hurtled into the fence, propelling debris through and over the catch-fence that was there to protect the crowd. Fourteen people were sent to area hospitals—two in critical condition. At the time of this writing, the two spectators critically injured spectators remain at the Halifax Health Medical Center.

I was contacted by a reporter the day after the accident. One of the questions he asked was whether or not Daytona International Speedway and its owner, International Speedway Corporation, would be exculpated from liability by the disclaimer found on the back of admission tickets.

The disclaimer states that “the holder of this ticket expressly assumes all risks incident to this event, whether occurring prior to, during, or subsequent to the actual event, and agrees that all participants, sanctioning bodies, and all speedways, agents, officers, or directors of Daytona International Speedway, its affiliates and subsidiaries are hereby released from any and all claims arising from the event, including claims of negligence.”

Having been an amusement park accident and recreational torts injury attorney for the last three decades, I am quite familiar with the way promoters operating sports and amusement businesses will attempt to disclaim liability by means of the statement imprinted on their ticket stubs. Such disclaimers are placed on the back of admission tickets to virtually all ski resorts, hockey arenas, football and baseball stadiums, and amusements venues—as well as races.

While many defense attorneys will argue that the fine print on the disclaimers is enough to cover possible claims, each case must be evaluated independently. Invariably, defense argues that attending an extreme sporting event is inherently dangerous, and that spectators can be injured—which is allegedly why they include a written warning on the admission tickets. Often, such cases are confidentially resolved or quashed, and victims are offered a large confidential settlement prior to the filing of a public lawsuit.

From my point of view, as an attorney who has successfully breached such waivers, I would argue that disclaimers only cover normal risks, and that such exculpatory language cannot remove claims of negligence or recklessness, if the owner or operator of the attraction is deemed to have acted inappropriately. In addition, there is often a separate cause of action for product liability, which would not be waived by any such disclaimer. This can come into play if fences or barriers are not properly constructed, or are constructed with improper materials.

In the case of the Daytona crash, this seems to have been the case. The catch-fences, put in place with the express purpose of protecting spectators from flying debris or foreign objects, did not do what they were supposed to do. The same thing happened in a similar crash at the Talladega Super Speedway in Talladega, Alabama, in 2009, when a car hurtled into a catch-fence, injuring 7 people. And, in 2011, IndyCar driver Dan Wheldon was killed when his racecar went airborne and plowed into a catch-fence at Las Vegas Motor Speedway.
The type of catch-fence in use at Daytona International Speedway—25 feet tall, with tightly pulled cable that supposedly leaves little room for flying debris to penetrate—is the same type of fence that surrounds all NASCAR Sprint Cup tracks. NASCAR is said to be planning a review of catch-fence safety.

The amusement park accident and recreational torts injury attorneys of Reiff and Bily have been recognized by their peers as having the highest possible ratings in both legal ability and ethical standards. They are consistently recognized as Pennsylvania Super Lawyers, and are members of the National Trial Lawyers Top 100 Trial Attorneys.

Third party legal cases that involve first party medical payment plans and subrogation interests can be tough to resolve. Quite often, a medical payer will assert a subrogation interest and lien on a third party liability claim, in an effort recover the full payment of medical bills. As Pennsylvania catastrophic injury and car accident lawyers, we believe that all plans, even self-funded ERISA plans, should be forced to reduce such medical liens in proportion to the amount spent on attorneys’ fees for third party recovery.

In the case of US Airways, Inc. v. McCutchen, 663 F.3d 671 (3rd Cir. 2011), the Third Circuit Court reversed, on appeal, the decision of a Western Pennsylvania trial court ruling that a lien had to be repaid in full, with no reduction. The case involved a self-funded ERISA plan, to which the Court applied the traditional equity principle of unjust enrichment. It held that any judgment requiring the victim or plaintiff to provide a full reimbursement to the employer—in this case, US Airways—would constitute inequitable relief, because the amount exceeded the net amount of the victim’s third party liability recovery. The Court ruled that requiring the victim to fully reimburse his or her employer’s health plan would result in a windfall for the employer—who had contributed nothing to the cost of obtaining a third party recovery. Noting that “equity abhors a windfall,” the Court concluded that equity applies to subrogation rights under an ERISA plan. In the case of McCutchen, Counsel successfully argued that, if legal fees or costs were not taken into account, the employer , US Airways, would effectively be reaching into its beneficiary’s pocket—thereby placing the beneficiary in a worse position than if he or she had not pursued a third party recovery in the first place.

A third party lien holder that attempts the full recovery of a subrogation interest, and wrongfully seizes or attaches the funds of another for its own purposes, is committing what is known as a theft- by-conversion. Conversion is when a defendant assumes and exercises ownership or control over property or funds belonging to someone else —without authorization—thereby depriving the other person of property or funds. Whenever a third party lien holder or medical plan claims the right to full recovery, and either refuses to reduce its recovery, or insists on a minimal reduction, the victim needs aggressive legal protection to ensure that he or she will not be cheated by an insurance carrier, adjuster, or independent adjuster who violates the law.

This principle applies to many personal injury cases—particularly, settlements involving a spouse’s right of compensation and/or recovery for loss of consortium—which are “off limits” for the recovery of subrogation interests. In one case, that of ACS Recovery Services Inc. v. Griffin, 676 F.3d 512 (5th Cir. 2012), the Court stated that—unless the plan agreement states specifically that it can seek reimbursement from an award for loss of consortium made to a beneficiary’s spouse—it cannot recover such funds. In other words, the plan, or third party lien holder, would have no rights to recovery on any portion of the spouse’s settlement.

Jeffrey Reiff is a catastrophic injury and car accident lawyer in Pennsylvania who has been recognized as one of the Top 100 Lawyers in Philadelphia and one of the Top Northeast Lawyers. He has regularly been named a Pennsylvania Super Lawyer, and has consistently been rated Superb by Avvo.com.

Verbal, emotional, and physical bullying of students can have horrific consequences. Last year, thousands of students committed suicide as the result of bullying, and it is said that almost 200,000 children stay home from school each day, out of fear of being bullied. Recent research indicates that almost 30% of all students in America are affected by bullying—with deep and long lasting consequences, including self-esteem and confidence issues, anxiety, and depression. The deterioration of the victim’s physical and psychological well-being often requires anti-anxiety and depression medications, and therapy.

Bullying at school typically involves punching, pushing, and other aggressive physical behavior, together with psychological bullying, in the form of name calling, verbal abuse, ostracism, or ridiculing of the victim’s sexual orientation. Typically, due to peer and social pressures, most students who witness bullying are reluctant to come forth—either for fear that they may be the next victim, or because they really don’t care enough to take a stand. And, sadly, bullying is not limited to offenses by one student against another; it can also involve the abuse of power and control by teachers.

In recent years, a new and invidious form of bullying has arisen: cyber-bullying. This phenomenon, which takes place largely on social networks, enables one bully to reach thousands of anonymous others, multiplying the horror in a way that is enormously frightening way for a young victim.

As someone who has been a school bullying and sexual abuse lawyer for over three decades—and who also happens to be married to a psychologist and teacher—I am well aware that unmonitored bullying leads to long-term psychological problems, and sometimes suicide. I am also aware that school officials may be held legally responsible for damages, if they knowingly allow a dangerous condition to exist which can lead to the foreseeable injury or death of a victim.

Many times each year, I receive phone calls from distressed parents or relatives of bullied school victims who have put school officials, teachers, and counselors on alert about a problematic situation, but to no avail. Too often, despite parental complaints, school officials and teachers fail to take appropriate actions—until it is too late. Similarly, the legal system rarely gets involved with school bullying until after a serious situation has occurred. I believe that a more proactive stance is required by educators and lawmakers, and I salute private attorneys who are willing to march forward on behalf of those who are bullied.

Forty-seven states have passed legislation requiring schools to address the bullying problem. Accordingly, teachers, principals, and school boards are being required to address the issue—and they can be held professionally and legally responsible if they are aware of a dangerous situation and fail to address it.

Pennsylvania law requires that each school adopt a policy on bullying, or amend an existing policy, in accordance with the School Entities Code of Conduct, under 22 Pa. Code §12.3 (c). The policy must set forth disciplinary consequences for bullying, and provide for prevention, intervention, and educational programs.

The law defines bullying as an intentional written, verbal, electronic, or physical act, or series of acts, that is directed at another student or students, and occurs in a school setting. It is severe, persistent, and pervasive, and has the effect of interfering with a student’s education, creating a threatening environment, and substantially disrupting the orderly operation of the school.

If your child or teen is the victim of bullying or abuse at school, you should be aware that this is not one of the normal rites of passages that many claim it is. Indeed, bullying may have serious civil and legal consequences for the offenders and the educational institutions that harbor them.

Jeffrey M. Reiff is committed to protecting victims of bullying, and to working on new solutions to the challenges faced by victims and those who serve them.