Workplaces & Premises
A few summers ago, I blogged about the dangers of window falls for toddlers. SKW has represented clients in tragic window fall cases, many of whom have suffered brain injuries. In one of our cases, Soproni v. Polygon Apartment Partners, a 20-month old child was severely injured in a fall caused by a defective window latch.
Unfortunately, as often as these tragedies occur, not enough parents and caregivers recognize the pitfalls of keeping windows open around young children. Earlier this week, a two year old girl fell to her death in the Seattle Maple Leaf neighborhood. I read about this sad story on KOMO News’ website and thought the topic was worth blogging about again if it may prevent even one child from getting needlessly hurt. As we enjoy the rest of an unusually sunny and warm summer in the Puget Sound, parents should remain on guard about the dangers of open windows.
Below are some tips from SafeKids.org:
Install Window Guards & Stops
- Screens are meant to keep bugs out, not children in. Properly install window guards to prevent unintentional window falls. For windows above the first floor, include an emergency release device in case of fire.
- Install window guards that adults and older children can easily open in case of emergency. Include this in your family’s fire escape plan and practice it regularly.
- Install window stops so that windows open no more than four inches.
Open Windows From the Top and Close After Use
- If you have windows that can open from both top and bottom, make a habit of opening just the top to prevent accidental falls. Keep in mind that as kids grow, they may have enough strength, dexterity and curiosity to open the bottom.
- Keep windows locked and closed when they are not being used.
Keep Kids From Climbing Near Windows
- For your crawlers and climbers, move chairs, cribs and other furniture away from windows to help prevent window falls.
- Never move a child who appears to be seriously injured after a fall — call 911 and let trained medical personnel move the child with proper precautions.
Several days ago, a construction worker fell to his death at a site on the Bellevue College campus. Exactly why he fell 50 feet off a ladder is still the subject of investigation.
This tragedy is unfortunately not the first of its kind this year. The Washington State Department of Labor & Industries (L&I) has cited three companies for safety violations related to the death of a construction worker in downtown Seattle in January. The man died after falling 72 feet from a scaffold at a construction site on Taylor Avenue North.
A serious violation exists in a workplace if there is a substantial probability that worker death or serious physical harm could result from a hazardous condition. A willful violation can be issued when L&I has evidence of plain indifference, a substitution of judgment or an intentional disregard to a hazard or rule.
Referring to the January construction fatality, “This tragedy could have been prevented if any one of these companies had made certain that proper and safe scaffolding was installed to do the necessary work, and workers had appropriate fall-protection and training,” said Anne Soiza, assistant director for L&I’s Division of Occupational Safety and Health. “Frequent hazard analysis on construction sites will save lives.”
Whether a worker is a contractor or an employee, the general contractor/employer is responsible for providing for adequate safety equipment and training. Adequate and frequent inspections of the site are also required.
Stritmatter Kessler Whelan was asked to represent a profoundly injured construction worker, Candelario Perez, who was tightening barbed wire fence, when he slipped and fell off a cliff. Luckily, he survived. However, he is now a quadriplegic. After the State of WA’s investigation ruled against the general contractor and issued a small fine. But becaue Mr. Perez was a subcontractor, he had the right to sue the general contractor.
Under Washington State law, there is a principle known as “Stute.” Stute requires that a general contractor maintain a safe work site. In Mr. Perez’s case, the general contractor had no idea how to work on a cliff and delegated that project by hiring a subcontractor. However, the general contractor did nothing to ensure that the subcontractor was keeping its employees safe.
Because there is worker’s compensation in Washington, an injured worker cannot sue their employer. But they can sue if someone other than their employer caused their injury.
Today, a jury at Gray Harbor County Courthouse arrived at a $3,876,139 verdict for a Toutle, WA man’s painful and disabling injuries as the result of the defendants’ negligence at an Oakville, WA mill. Attorneys Ray Kahler and Keith Kessler of Stritmatter Kessler Whelan along with Craig Weston of Reitsch, Weston & Blondin represented the plaintiffs, Verl and Marsha Lee.
From infancy, most of us are taught that serious harm and injury can result if you stick something in an electrical outlet. But Daniel Fletcher, an employee of Willis Enterprises, failed to grasp this basic safety concept: When Verl Lee, an electronics technician contractor was dispatched to address a malfunctioning Variable Frequency Drive at Willis Enterprises’ mill, Mr. Fletcher decided–out of the blue–to stick a screwdriver into the Drive. The Drive generates 480 volts of electricity. By comparison a household outlet is 120 volts.
When Mr. Fletcher stuck the screwdriver into the Drive, he was fully aware that the Drive was energized. As Mr. Fletcher stuck the screwdriver into the Drive, there was an immediate explosion. Mr. Fletcher’s action triggered an electrical arc fault, which caused an intense, bright flash of light, a very loud noise, high heat, and a pressure wave. Mr. Fletcher closed his eyes because of the bright flash of light and for a time thought he had lost his sight.
From the loud noise of the explosion, Verl Lee experienced a “terrible ringing” in his head, as well as an intense pain behind his eyes. He heard a clicking and swooshing sound every time he or someone else spoke. The mill manager arrived and found the Drive had been destroyed. Verl told the manager that he would call his supervisor and have a new drive shipped overnight, but that he would not be back the next day to install it because he knew that he had to see a doctor for the ringing in his head.
After numerous medical appointments, Verl was ultimately diagnosed with tinnitus and hyperacusis. Tinnitus is likened to a phantom limb pain, when one loses an arm/leg to an injury, but sensations of pain from the affected extremity no longer exist. This is due to the damaged nerve endings, which are sending signals to the brain. The brain is trying to figure out what to do with them, and it interprets it as pain. Tinnitus is very similar in that the hearing parts of the brain are getting that abnormal nerve signals and trying to figure out what to do with them, so the brain interprets it as sound. Verl hears seven tones in his head, seven days a week, 24 hours a day.
To understand what Verl must live with, imagine putting in earbuds, and then playing a high pitched whine on your iPod, one that Verl Lee describes as that of a “jet engine with all the high pitch whines”, 24 hours a day, 7 days a week for the rest of your life. Try having a conversation, try listening to music, try just thinking with that irritating sound going on and on and on. That is what Verl’s tinnitus is like.
Hyperacusis is an abnormal sound sensitivity. Imagine that the clanking of dishes being unloaded from a dishwasher makes you cringe and jump. This is what Verl must endure. He cannot use a lawnmower, power tools, or a hammer because noises louder than normal conversation cause pain.
Along with the injuries to his hearing system, the chronic pain behind his eyes makes Verl unemployable.
The following is reprinted from the King County Bar Bulletin, June 2012 issue.
“The Velvet Hammer” is a perfect moniker for Karen Koehler. Her disarmingly soft touch belies her tough-as-nails representation of wrongful death and catastrophically injured clients.
While raising three daughters (Cristina, Alysha and Noelle), Karen has managed to raise the bar as one of Washington’s top trial lawyers. Her Oprah-style trial approach has earned her the recognition of her peers as a Trial Lawyer of the Year by the Washington State Association for Justice (WSAJ).
Most recently, her 1½-year-old blog (KarenKoehlerBlog.com) catapulted to the top of the charts as the American Bar Association’s No. 1 Trial Practice blog.
Karen is as technical as she is creative. Her logical German father is a retired UW professor of biological structure. Her intuitive Chinese mother is a retired general practice lawyer. They taught her to be proud of her mixed race and that it wasn’t necessary to fit within a stereotype. As a result, Karen takes delight in challenging trial lawyer “norms.”
“You can be serious and do a good job without having to take yourself too seriously,” she says. She is on a personal quest to show the general public that “lawyers are real people too.” This is what makes her blog so appealing to a large cross section of society.
“We lawyers are our own worst PR enemies,” Karen says. “Look at the awful ads on everything from television to taxi cabs. The Internet is clogged with lawyer garbage. Our best hope is to stop adding to the caricature and humanize ourselves.”
Karen obliges through her website, blog, Facebook, Twitter, Instagram, P’interest, and any other new social network device that her daughters learn and tell her about. She has changed the way the law firm of Stritmatter Kessler Whelan (SKW) portrays itself – from the ads she conceptualizes to the booklets she shepherds through completion.
For the past decade, Karen has been writing trial diaries that reflect her love of courtroom drama and her desire to have fun – from the time she lost a shoe and wore flip flops while cross-examining a witness to the time the entire jury panel, judge, defense counsel and everyone else in the courtroom applauded her witness on a spinning bike. Her stories enthrall as much as they inform.
Justice Steven González admits with a chuckle, “While not in trial, I enjoy reading her blog.” About what makes her interesting in the courtroom, he explains, “Karen is not afraid to disagree – whether it’s with opposing counsel or with the court. Her arguments are excellent and make a good record effectively.”
Another judge who also enjoys Karen’s blogs and trial diaries when not presiding over one of her cases is Judge Richard McDermott. “Her trial diaries are a refreshingly candid account,” he says. “While self-effacing, they are poignant and accurate. What a great tool she’s provided for young lawyers.”
In commenting about her as a trial lawyer and her courtroom presence, Judge McDermott says, “Karen is very special. When she’s in the courtroom she looks like she wants to be there. Unlike too many attorneys, she’s always well prepared.”
Judge Mary Yu describes Karen as “an extraordinary trial lawyer; she is intuitive with jurors and creative with her presentation. I truly appreciated her sense of humor, intensity and willingness to experiment with me as we took one of her cases (a jury trial) up to Seattle University School of Law. The one word that comes to mind when I think of Karen is ‘courageous.'”
Karen’s energy level (she calls it her hyperactivity disorder) has shown no signs of waning over the years. (Does she ever sleep?) And in case you are interested, she is not shy about being “51 years alive.”
Karen runs more than an hour every day, usually with her dog Nala. “It’s how I meditate,” she says. She manages a demanding caseload with SKW and did so even when she recently served as WSAJ president. She frequently speaks around the country for trial lawyer associations and the American Association for Justice where she is also a board member.
She has been an adjunct professor of trial advocacy at the UW where she has taught for seven years with Bill Bailey. And, in 2010, she started the Female Trial Advocacy Program that offers classes through WSAJ.
In 2011, Karen wanted to make a difference outside of the legal arena. She created (with SKW’s significant support) and now serves as the president of the Spinal Cord Injury Association of Washington (SCIAW.org). SCIAW is a partner of the Christopher and Dana Reeve Foundation.
Karen’s daughter Cristina organized SCIAW’s first large event, the Green Lake Walk and Roll, which raised over $11,000. The second Walk and Roll will be October 6 and is expected to be at least twice as big.
Karen’s high-profile cases include:
Kime v. City of Seattle: The Kime case is well known by Seattle residents who were around in the early 2000s. Young Kris Kime was trying to help an innocent victim, who was being attacked during the Mardi Gras riots of 2001, when he himself was then beaten to death. Despite Kris’s friends pleas to the police, who stood nearby, the officers complied with the mayor’s orders to do nothing. Suing the city was a way to hold it accountable for decisions that led to avoidable death and injuries.
Ethel Adams v. Farmers Insurance Company: Michael Testa rammed his girlfriend’s truck as he chased her down Aurora Avenue. The truck crossed the centerline where it flipped upside down on top of and head-on into Ethel Adams, almost killing her. Adams’ insurance company, Farmers, decided not to pay the claim because road rage was not an “accident.”
The public became outraged as media covered the lawsuit. The insurance commissioner threatened to shut Farmers down in Washington, at which point it changed its mind and paid on the policy. Adams then sued Farmers for bad faith. One year after Adams was hurt, the governor signed the “Ethel Adams Bill” into law – when an innocent person is injured in a car accident, the insurance company can no longer play the same word games.
Perez v. “Construction Company”: SKW, through Karen, Paul Stritmatter and Kevin Coluccio, brought a lawsuit on behalf of Candelario Perez and his three dependent children in the Eastern District of Washington in Spokane. In 2008, Perez was tightening barbed wire to a fence post when he fell backwards off a cliff in Eastern Washington, tumbling head over heels down a canyon wall. Perez became an instant quadriplegic.
For a year and a half the SKW team battled with the general contractor, which had failed to provide any fall-protection safety. SKW even went with all five of its experts to the cliff with proper safety gear. Exactly two years after Perez’s tragic injury, the case settled for $7 million – the available policy limits.
Both the general and subcontractor are still in business and working together. But there is now a difference. Today, their workers attend regular safety meetings, minutes are kept, fall-protection gear is provided, and there is a fall-protection system in place.
Karen will be the first to say that she’s not an island. She is still best friends with her former law partner Pat LePley. She credits the strength of the Stritmatter firm for helping her to blossom these past eight years. She has a picture of her paralegals Anne Roberson and John Meyers front and center on her desk because they “get it all done.”
Her network of extended family and dear friends grounds her. Cristina, her eldest daughter, is on her way to Gonzaga University School of Law. Alysha, a junior at the UW, created and is president of UW Yogis – a 200-member group. Noelle has completed her freshman year and is heading to school in Nashville for a music business degree.
Karen Koehler personifies the new-era trial lawyer. She improves the image of our entire profession, while obtaining significant results for her clients as only “The Velvet Hammer” can.
Paul Stritmatter, a former Trial Lawyer of the Year and Champion of Justice, is a partner at Stritmatter Kessler Whelan. Stritmatter’s blog, FightSubro.com, is also quickly catching up with Koehler’s personal blog in terms of readers. Catherine Fleming is an attorney at SKW. She contributes regularly to the firm blog at pnwinjurylawadvocate.com.
The U.S. Supreme Court has rejected a legal theory that would have given asbestos injury attorneys a new industry to attack with lawsuits.
SCOTUS ruled this past Wednesday in favor of companies involved with the design and manufacture of locomotives and their parts. The estate of the late George Corson, a welder and machinist for a railroad carrier, had sued Railroad Friction Products Corp. and Viad Corp. in Philadelphia, alleging injury from exposure to asbestos in trains and train parts distributed by the companies.
The estate’s design-defect and failure-to-warn claims were preempted by the federal Locomotive Inspection Act, the court held in a 6-3 decision authored by Justice Clarence Thomas. The decision was in line with one made by the court 85 years ago in Napier v. Atlantic Coast Line.
“(P)etitioners contend that the LIA’s preemptive scope does not extend to state common-law claims, as opposed to state legislation or regulation,” Thomas wrote.
“Napier, however, held that the LIA ‘occup(ied) the entire field of regulating locomotive equipment’ to the exclusion of state regulation. That categorical conclusion admits of no exception for state common-law duties and standards of care.”
The decision affirmed a ruling by the U.S. Court of Appeals for the Third Circuit. It had been removed from a state court to Philadelphia federal court.
Dissenting were justices Sonia Sotomayor, Ruth Bader Ginsburg and Stephen Breyer. Sotomayor’s dissenting opinion said that the plaintiffs’ claim for failure to warn was not preempted, though it agreed the defective design claim was.
The federal government and the American Association for Justice were among the groups supporting the plaintiffs’ lawsuit.
“Because the right to a legal remedy for wrongful injury is a fundamental right under the Constitution, courts may not preempt such a cause of action and leave injured persons without remedy unless Congress specifically intended that result,” the AAJ’s amicus brief said.
“The mere silence of Congress in a statute not directed at railroads rather than manufacturers falls short.”
Complaints against 50 other companies were dismissed.
NOTE: This blog entry is republished from http://www.asbestoslawblog.com/.
Firefighter Mark Jones fell 15 feet down the hole in the middle of a night in December 2003. He suffered traumatic brain injuries and a shattered pelvis. Many of his vertebrae were broken as were nearly all of his right ribs.
In 2010, a verdict awarded Jones almost $13 million for his disabilities, along with pain and suffering.
As the Seattle Times reported, today the City of Seattle appealed, saying among other things that it should have been allowed to present evidence at trial of Jones’ prior alcohol use, even though he had not been drinking the night of the fall. An expert for the city speculated that Jones could have been disoriented by alcohol withdrawal symptoms, but the appeals court found that the trial judge was correct to bar that testimony from the trial.
The city’s insurer secretly videotaped Jones allegedly dancing and chopping wood. Even had Jones been doing such things, the sad truth is that even disabled people can occasionally dance and chop wood. While virtually $13 million seems like a significant amount, constant medical treatment and daily living assistance can quickly add up over the course of several decads. Jones is now in his late 40’s.
SKW attorney, Ray Kahler, recently wrote an article for Trial News. In brief, Ray discusses the importance of adopting safer requirements by bottle producers in this country. We should look at the requirements now imposed in Europe. If such safety requirements had been in place, an SKW client would have avoided serious injury while working with an unguarded bottle making machine.
Read the article for yourself (Product liability article for Trial News 2011.pdf) and find out how unsafe conditions remain for those who work in bottle manufacturing plants.
New report shows hypocrisy of Institute for Legal Reform’s corporate board members that aggressively litigate while blocking justice for everyday Americans
Washington, D.C. –As the U.S. Chamber’s Institute for Legal Reform (ILR) holds its annual summit – a strategy session on eliminating Americans’ access to the civil justice system – a new report exposes ILR’s corporate board members that hypocritically use the courts for their own gain against competitors, customers and even each other.
In its newest report, Do As I Say, Not As I Sue, the American Association for Justice (AAJ) exposes the hypocrisy of 10 ILR board members that regularly use the legal system to advance their own agendas, while at the same time advocating legislation that would close the courthouse doors to anyone who would hold them accountable for their own wrongdoing.
“These corporations, like all Americans, have a right to seek justice through the legal system,” said AAJ President Gary M. Paul. “What makes their actions shameful and hypocritical is that these companies are members of ILR’s board for the sole purpose of denying American workers and consumers this same right.”
One ILR board member highlighted in the report is Honeywell International, which has regularly taken competitors to court, but would prefer not to be held accountable for distributing defective body armor to law enforcement personnel across the country, or downplaying the dangers of asbestos exposure.
In return for its financial contributions to ILR, Honeywell has received policy and public relations help when its negligence has been uncovered. Four days after an Illinois jury delivered a multi-million dollar verdict against Honeywell for conspiring to hide the dangers of asbestos, ILR issued a press release stating that the decision “confirms a troubling trend in the State of Illinois where there is a hostile ligation environment.” Additionally, the Madison County Record, an Illinois-based propaganda-as-news outlet fully owned by ILR, featured an article headlined, “McLean County Continues Inching Closer to Becoming a ‘Judicial Hellhole.'”
The irony does not stop with Honeywell – AAJ’s report also highlights the litigation hypocrisy of ILR board members FedEx, Dow Chemical Company, General Motors Corporation, Caterpillar, State Farm, Koch Industries, Abbott Laboratories, Prudential and Johnson & Johnson.
Online ads will run this week on major news sites and blogs to promote the report, Do As I Say, Not As I Sue: Exposing the Lawsuit-Happy Hypocrites of U.S. Chamber’s Institute for Legal Reform, which can be found at www.justice.org/USChamber.
Just when you might have thought that NFL’s woes were over with the end of its 136 day lockout, 75 players and some of their wives filed a lawsuit in L.A. last week for negligence, fraud, and liablity. In addition to NFL, Riddell, the well known helmet maker and the supplier of helmets to NFL, is named as a defendant in the lawsuit.
Allegedly, NFL knew about the harmful effects of concussions as early as the 1920s, but intentionally hid related information from coaches, trainers, players and the public. The suit seeks unspecified damages.
As evidenced by comments on this story at MSNBC and other news sites, people are already likening this lawsuit to the McDonalds hot coffee lawsuit. (Sadly, those drawing the parallel remain woefully ignorant by the so called “frivolous lawsuit” of the 79 year old woman Stella Liebeck, who sued McDonalds.)
Interestingly, the NFL created the Mild Traumatic Brain Injury Committee back in 1994, which studied the long term risk of long term brain injury to players. According to the complaint, the Committee published false and deceptive reports, to mislead the public along with Congress and the players.
In 2007 players received a pamphlet that pointed to the Committee’s research papers, stating, “Current research with professional athletes has not shown that having more than one or two concussions leads to permanent problems if each injury is treated properly.”
However, from the start of last season NFL players could read about how concussions could lead to depression and early onset of dementia, which “can change your life and your family’s life forever” from posters in every team’s locker room.
For many reasons, this lawsuit is one to watch.