Head / Brain & Spine Injuries

Why saying two simple words would be nice

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Most people who would have been injured like Marissa Schneider, would have died.  That she survived was a miracle.  Unfortunately doctors believed she would remain in a “vegetative state” for the rest of her life.  Paul Stritmatter, Peter O’Neil and I worked on the case and got to know Marissa’s loving family.  

Mainly because of her angel of a mother, Marissa has made huge progress against all odds.  Though she continues to need 24 hour care in a nursing home, her quality of life has improved.  King 5 did an inspirational followup news story on Marissa and Cindy.

I still keep in touch with the Schneiders thanks to facebook.   Another accident anniversary date has passed.  Cindy and I were talking about one remaining open wound.  The young woman who crossed the centerline and hit Marissa, was her same age.  She has gone on to college and is living a normal life.  To this day, neither she nor her family have ever contacted the Schneiders to simply say:   “I’m sorry.” 

For shame.


Keep State Agencies In Check

In case you missed it, an insightful editorial appeared in this Sunday’s The Columbian, “Courts keep failures by state agencies in check.” Magana and Wieland point out the serous problems with endorsing special legal protections for state government agencies whose negligent actions or inactions cause harm to citizens. 

Importantly, Magana and Wieland explain that “government is never responsible for anyone’s actions but its own, and is never judged on any failures or bad choices except for its own.” Only if “but for” the government’s failures did an injury arise, then it could it then be held liable.

Please read the piece in its entirety for a thoughtful and accurate explanation to understand why we must continue to hold the government accountable via lawsuits in Washington state.

In the interest of full disclosure, one of the authors of this editorial is Jesse Magana, a client of Stritmatter Kessler Whelan.

Visit New KeepWASafe.com Website & Blog

As we head into this year’s first legislative session, the law firm of Stritmatter Kessler Whelan (SKW) wants to provide an informational resources via a new website, KeepWASafe.com. As the days and weeks progress, please visit it frequently for more information, which will help you understand why the agenda to bar lawsuits against the state for tort cases will make Washington less safer for all of us.  

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We welcome your comments and questions.  

When Can A Worker Sue For An On-The-Job Injury?

By Karen Koehler

This blog entry was originally posted on SpinalCordInjuryLawBlog.com.

roof.jpgThe call comes from an attorney friend in another state.  He is looking for a workers’ comp lawyer in Washington.  A man has fallen on the job and is now quadriplegic .  I ask what happened.  I talk to my partners.  We decide there could be a case because “Stute” might apply.  What is Stute?  And why did we take the case – not as a worker’s comp case – but as a personal injury lawsuit.

Washington made a deal with injured workers when it enacted Title 51 of our State Code.  If you are injured on the job as a result of the fault of your employer, you give up your right to sue.  In exchange the Department of Labor & Industries will provide workers’ compensation benefits (with insurance premiums paid by employers).  But there are exceptions

Sometimes a person injured on the job can bring a lawsuit for injuries.  For example, a worker can sue someone if they weren’t employed by the same company.

There is also a major exception to the rule.  It is called Stute.

In Stute, a general contractor (PBMC), hired a subcontractor (S&S Gutters) to install gutters and downspouts on a condominium construction project.  Mr. Stute, an employee of S&S Gutters, slipped off a roof and was injured.  PBMC knew that employees of S&S Gutters were working on the roof without any safety devices.  The Washington Supreme Court ruled that “a general contractor has a duty to comply with all pertinent safety regulations with respect to every employee on the job site.” 

This means, if you are working for a subcontractor on a project.  And if you are injured because a safety violation has occurred.  Then, you may be able to sue under the Washington Industrial Safety and Health Act of 1973.  That act requires  all employers to furnish to each of its employees a place of employment free from recognized hazards that are causing or likely to cause serious injury or death to their employees . “

In the case of our client, we filed a “Stute” lawsuit.  The General Contractor confessed to not having any safety meetings, policy or procedures, or equipment for workers of the subcontractor.   Ultimately their insurance company was required to pay for the worker’s injuries.

(This trial exhibit was of an on-the-job roof collapse that resulted in multiple orthopedic injuries including a spine injury).

WA State Says That $8 Million Payout Was the Right Thing To Do for Injured Cyclist

By Keith L. Kessler

Yesterday AM, KUOW aired an uneven story about the fact that WA State has recently had to make large payouts in tort claims.  The reporter, Austin Jenkins, opened his story with a brief description of a recent SKW cases, which I handled: This was the case of Mickey Gendler, a lifelong cyclist and attorney, who was seriously injured in a bicycle accident in 2007.  

Mr. Jenkins failed to mention that the State admitted that the $8 million award was justified.

When interviewed by a Seattle P-I reporter, the risk management director of WSDOT, John Milton said, “This was a catastrophic event to a very strong individual. This was the right thing to do for both Mr. Gendler and the taxpayer.”  [emphasis added]

When tragedy strikes an individual, in the form of an unpredictable accident, all of those responsible need to be held accountable.  Even when one of those parties might be the State.

Defendant Tries To Dodge Responsibility Although Its Driver Was High

By Karen Koehler

In the evening of October 5, 2006, you have a few drinks and smoke a bowl of marijuana.   The next morning you get up early for your new job driving a truck for a window company.  What better way for you to start your day, than to smoke another bowl as you are walking out the door.  In fact, you like this routine so much that you start off every morning this way.

You get to work, get in your truck and head out.  In the middle of making deliveries, you decide to turn around.  You are on highway 99 and make a left turn intending to go around the block.  All of a sudden, your truck feels like it’s been struck by a bomb.  It lurches forward.  And you sit in your seat thinking.  Uh Oh.

You are scared to get out of your truck.  You have a pretty good idea what you’re going to see when you do.  You sit in your seat and get up the nerve to call your boss.  By now you can see other people rushing around and assume someone else has called 911.   Time seems to take forever and you don’t know how long you sit there.   Eventually you get out of your truck, walk around the right front end and stand there, looking down the length of it.  You can see the people huddling around something that looks like the back of a car.  The front of it is under the truck. 

Photo of Maislen's Car After Crash

You don’t walk up to see if you can help.  You don’t want to see whatever is in that wrecked red pile of shredded metal.  You stay right where you are until you can hear the sirens.  You back away.  Away from the dread of knowing that there is someone half under your truck.  You can barely see his outline.  And that’s the last time you ever see Marc Maislen.

Years pass, and it is April 2010 and you are in court.  Mr. Maislen has sued you.  The company’s insurance company does not offer enough to settle the case.  You are facing a full jury trial.  The insurance company at first tried to claim that Mr. Maislen was at fault.  For years, they denied that you were responsible.  Even though you gave the police your pot and pipe that were in your coat pocket.  Even though you admitted that you were high.  Even though you were convicted of a crime and went to jail.   The insurance company tried to blame him.  Until a few months before trial.  They decided they better admit fault.  They told the judge they would agree you caused the wreck.  But they also wanted to keep the jury from ever knowing that you were high.    

Juries are almost never told when a defendant is drunk or high so long as they admit fault.  But this case is different.  Mr. Maislen has post traumatic stress disorder.  Knowing that you were high when you almost killed him, has made him more fearful of driving.  It caused him panic attacks.  Judge Gonzales rules the jury needs to know the reasons why Mr. Maislen claims an injury, since your insurance company is fighting this.  And so on the first day of trial, the jury is told of your behavior.

Your insurance company is very upset.  They cannot believe the jury is being told you were high.  This almost never happens.   Instead of being able to have the jury look suspiciously at Mr. Maislen for bringing a lawsuit.  They are looking at you. 

Over the next several weeks, Mr. Maislen’s attorneys Karen Koehler and Mimy Bailey tell the jury the story of Mr. Maislen’s life.  All the bones and joints that were broken, the nerves that were blown away, the traumtic brain injury, and the emotional injuries.  Mr. Maislen was beloved by many.  Over thirty witnesses testify for him.  The insurance company hires experts to minimize Mr. Maislen’s claims.  But at the end of the day, the jury has the final say.  And they say that Mr. Maislen deserves a verdict for full justice.

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