The Harper Law Blog
The Harper Law Blog offers news, announcements, thoughts and articles on life, law and our practice areas of emphasis.
Common Area injury - Burden of Proof on Plaintiff
Posted Friday, August 16, 2013 by Ed Harper.
Recently, Division One of the Washington Court of Appeals denied a plaintiff’s product liability claim. The case arose when the plaintiff was injured after she fell to the ground while sitting in a patio chair which collapsed for an unknown reason. The plaintiff was injured while a tenant at an apartment complex. Plaintiff struck her head on the concrete flooring. This occurred in a common area controlled by her landlord and/or the property manager. The plaintiff did not know why the 4-5 year old chair collapsed, but alleged the chair was defective, and/or not properly maintained by the owner and/or property manager.
The injured tenant retained counsel. Her attorney requested the chair be kept and secured in order to investigate this claim at a later date. The attorney sent a letter which was delivered to the property manager of the apartment complex to maintain the chair. The property management company (Wallace Properties) maintained and did secure the chair. The chair was allegedly kept in a storage closet.
Subsequently, the property manager was replaced by a new property manager, and the chair disappeared. The chair was not discovered prior to filing suit. In sum, without the chair, the plaintiff was precluded from conducting any tests to determine why the chair collapsed.
The former property manager was named as a defendant. Another defendant was incorrectly named as the landowner. A summary judgment motion was filed by the property manager. The property manager claimed they did not have actual or constructive notice of the condition of the chair and therefore could not be held responsible. The alleged owner also brought a motion for summary judgment claiming they were not the actual owners of the property at the time of the chair incident.
The legal standard holds that a landowner (and property manager) is liable for harm to a tenant when the landowner “knows or by the exercise of reasonable care would discover the condition and should realize that it involves an unreasonable risk of harm to tenants” Musci v. Graoch Assocs. Ltd. P’ship No. 12, 144 Wn.2d 847, 855, 31 P.3d 684 (2001) citing Restatement (Second) of Torts section 343. (1965). Here in Washington, the court articulated the standard for knowledge – requires the “actual or constructive notice of the unsafe condition”. Iwai, 129 Wn.2d at 96.
The plaintiff failed to convince the trial court and the appellate court, that because the chair was missing and not maintained, they should not have to meet their burden of proving the chair was defective and/or improperly maintained. The plaintiff suggested the disposal of the chair was negligent and tantamount to destruction of the key piece of evidence, which precluded the plaintiff from proving their case.
The court was not convinced and the plaintiff’s case was dismissed for lack of evidence. Without the chair, the plaintiff was hamstrung and lacked the crucial piece of evidence. Also, there was nothing to show the property manager had actual or constructive knowledge of the defectiveness of the item. Also, the correct owner was never named, and the plaintiff failed to satisfy their burden of proof. The chair was never tested nor was there evidence of any knowledge on the part of the defendants.
What you need to prove for medical negligence claims
Posted Tuesday, July 23, 2013 by Ed Harper.
A former client recently asked me if she had a claim for medical malpractice. This is what i told her: It is possible there is a claim for medical negligence for the failure to provide adequate treatment for you. However, I wanted to go over some details of what is takes to win a case like this, and then we can chat.
Initially, medical negligence cases (or med. mal.) are very difficult against physicians and hospitals. The medical community typically wants to litigate every possible issue, and they have a host of attorneys willing to defend them. One reason is that a physician (who is the captain of the ship) has to personally authorize a settlement. And to do this, he or she is aware their insurance rates are going to go up. Ob/gyn rates are some of the highest for any specialty.
Secondly, the medical records become the “evidence” as to what occurred in the facility. These can be corrupted and items are either inserted or deleted in order to help the physician or facility. But, if you would request your records for the time in question, that would provide the necessary first step in evaluating your claim.
Third, to win a negligence case, you have to prove the standard of care for the particular issue was “breached” by either the physician or the facility. To do this you need an expert to come forward (they are not cheap) and tell us. Then the expert must be willing to testify that the doctor or facility did not meet the requisite standard of care.
Assuming, you have a breach, then you have to establish the “mistake or breach” was the proximate cause of the problems you suffered or continue to suffer from. A problem often arises if a person would have had a medical issue anyway, even without the failure to act appropriately.
Then, assuming you have a breach, and proximate cause, you have to have “damages – the harm caused by the defendants mistake – that make the case worth everyone’s time and effort knowing the defendants will defend at every level. Thus, you can have the first two elements, but not sufficient damages.
I’d love to explain these steps if you have any questions, and I’m sorry you went through what you did.
There is a statute of limitations which limits the amount of time to file a claim. In Washington, this typically is 3 years from the date of injury so a claim would have to be filed by that date to protect the statute.
Unauthorized practice of law - a couple recent court decisions
Posted Wednesday, May 22, 2013 by Ed Harper.
I provided some instruction regarding the practice of law in the State of Washington and found [two (2) recent cases] that shed light on the “unauthorized” aspect of this phrase. The term or definition of “practice of law” is “(t)he rendition of services requiring the knowledge and application of legal principles and technique to serve the interests of another with his consent”. Edwards v. Hert, 504 P.2d 407, 416. This means in a sense, if one is going to be advising and then acting for another, they should be prepared and trained and thus have the necessary skill and understanding of a trained professional.
A person may represent themselves in any legal situation. The Latin terms “Pro Se” or “Pro Per” means acting “for one’s self” or “for himself”. Courts will often allow one to advocate or argue their own position. This is not “illegal” but does have other problems. However, as the adage goes, “one who represents themselves, may have a fool for a client”.
The pro se exception does not apply to a layperson who receives some form of compensation for such legal services. This means that a person may not represent another, or provide any type of advice similar to what an attorney would provide. In Bowers v. Transamerica, 100 Wn.2d 581, 675 P.2d 193 (1983) the court held that non-lawyers who practice law without a license are liable for mistakes as if they were lawyers. This means, if a person convinces another to follow their mistaken advice, they stand in position to be sued. The non-lawyer would be held to a standard just as a lawyer. The term, “Professional Negligence” is a term of art for a person who has the special skills (a doctor, lawyer, accountant, etc.) and is required to possess and exercise the knowledge and skill of a member of the profession.
The unauthorized practice of law can be found in both civil and criminal law.
The unauthorized practice of law can be utilized as a defense to avoid a contract with a non-lawyer. In an unpublished case decided in 2013, Spoelstra v. Gahn, No. 67141-3-I the Court of Appeals of the State of Washington upheld the trial court’s finding of Daniel Gahn’s liability to Mr. and Mrs. Spoelstra. Mr. Gahn (a non-lawyer) had performed some legal work and then convinced the Spoelstra’s to sign over a promissory deed on property they owned, in exchange for attorney fees for work he had performed and would perform in the future, even though he was not an attorney. The court held Mr. Gahn was not entitled to any attorney fees, and quieted title on the Spoelstra’s property as Mr. Gahn was not a lawyer. Thus, Mr. Gahn could not enforce the alleged contract as he was practicing law without a license.
Additionally, one can be prosecuted by the State for the unauthorized practice of law. In State v. Janda, No. 68456-6-I (2013) the Court of Appeals Div. 1 upheld the conviction of Steven Janda (a non-lawyer) for two (2) counts of unlawful practice of law and two (2) counts of first degree theft. Mr. Janda while running a business called “Evergreen Paralegal Services” provided estate planning advice and prepared legal documents as well. The State charged Mr. Janda with practicing law without a license, and theft. He decided to represent himself in this criminal matter and he was found guilty on these four (4) counts.
Mr. Janda’s primary argument was that he could not be charged with violating the “unauthorized practice of law” statute as he was never an attorney. Thus, he did not fall within the plain meaning of the term “not active attorney”. The appellate court was not persuaded with this argument, and upheld the conviction from the trial court.
Hopefully, Mr. Janda will learn his lesson and stop providing legal advice as he is not licensed to do so.
Statute of limitations for medical malpractice and discovery of problem
Posted Wednesday, April 10, 2013 by Ed Harper.
I recently was asked the question: How much time do I have to bring a malpractice claim for the errors of a professional? The answer is not the easiest to discern, because it depends. However, I hope this clarifies a couple of potential problems.
The statute of limitations begins to run when a person suspects a problem with their medical care. The standard is what would a reasonable person have thought based on the circumstances of the care.
This is what we call the beginning of the discovery period of the malfeasance of a professional (could be a doctor, a dentist, or other medical professional). You would have three (3) years from this date to proceed.
If you “discover” a problem after the standard three (3) year statute of limitations period, you have one (1) year to proceed, but not more than 8 years after an incident to bring a claim for malpractice. The eight (8) year period is called a statute of repose and prevents any liability after this date. However, if there is a foreign body remaining in a person, which would extend the period of time.
This is a complicated question, but I hope i’ve cleared up some of the confusion.
7 Things To do Following a Motor Vehicle Collision
Posted Tuesday, March 12, 2013 by Ed Harper.
7 THINGS TO DO FOLLOWING A MOTOR VEHICLE COLLISION
1.Document the collision at the scene.
a.Write down all information you can recall possible. Especially if someone has admitted fault.
b.Take pictures. Of everything: people, cars, points of impact, area surrounding. More than you think is necessary.
c.Get names, addresses, phone numbers of ALL witnesses. Don’t rely on the police for this.
2.Call police to scene.
a.Officer at scene will help with exchange of information.
b.Officer can be a credible witness at later date if needed.
c.Officer can also potentially offer opinion of who was at fault, if this is not already clear.
3.Get in to see a health care provider, if injuries have occurred. Even minor ones.
a.Injuries must be documented; insurance providers will not take your word for it if there is not objective documentation.
b.If you receive health care, legal standard/requirements include:
ii.Necessary with helping with recovery and/or doctor determining proper diagnosis
iii.Related to the collision.
4.Contact an insurance company AFTER seeking legal counsel; you may not (and most likely will not) be treated fairly.
a.When you have been injured due to fault of an uninsured motorist (UIM), your insurance company has to take full responsibility. Therefore, they may try to minimize your injury/claims as a result.
b.DO NOT give recorded statements to EITHER insurance company, even if you are told to. It is not a requirement. Ask for a specific list of questions instead that can be sent through e-mail and mail so you can answer on your own time and with the help of a professional attorney. Everything you say can and will be used against you by an insurance company.
5.Obtaining insurance benefits should not require additional work on your part.
a.Check your Declaration page to see if your automobile policies has medical coverage not based on you being fault-free. This is often called personal injjry protection (PIP) or medical payments (med-pay)
b.If you do not have PIP, med-pay, or have exhausted your health benefits, your health insurance company should pay the bills instead.
6.Settle your claim only AFTER getting legal counsel. There are a variety of scenarios with traps for those who are unaware when you are finishing your case.
a.You may be responsible to pay back your own insurance company for money they paid on your behalf at the time of settlement, if you do not deal with them at the time of settlement.
b.If a governmental entity, such as Labor and Industries, has paid for any of your medical bills or lost wages, you must reimburse them according to state law.
c.If you owe back child support, you have to ensure these debts are paid from any settlement on your behalf.
d.If you settle for policy limits with the at-fault company, there are certain steps required to be taken to maintain a UIM claim with your own company. If these steps are not taken, you may lose the ability to pursue a UIM claim, which would forfeit you thousands of dollars.
7.Attorney fees are a small price to pay for peace of mind.
If you hire the right attorney (Harper Law), you will be able to trust their judgment and focus on recovering from your injuries without having to worry about your rights and the legalities of being involved in a collision.
You will also not have to concern yourself with the traps set by insurance companies, such as trying to encourage you to settle without an attorney as the settlement numbers go up dramatically once you have an attorney. Your own insurance company may try to give you legal advice, especially to settle your own claim. However, be aware that only a licensed attorney can give you legal advice.
Therefore, contact Harper Law in order to receive qualified and compassionate legal counsel.
We Are Here to Help
Although our office does not handle all types of cases, we hope you will contact us regarding any legal issues you may encounter. We will answer your questions, or refer you to another quality and trustworthy attorney if we are unable to assist you.