Northern Virginia Injury Lawyer & Attorney : Brien Roche Law Firm : Medical Malpractice, Product Liability, Car Accidents : Washington DC, North Virginia, Maryland

CHILD EXPOSED TO LEAD-BASED PAINT IN APARTMENT: FAILURE TO MAINTAIN PREMISES: DANGEROUS CONDITION: BRAIN DAMAGE:

Perez v. 2246 Holding Corp., N.Y., Kings Co. Sup., No. 1683/04, Oct. 4, 2007.

Perez, 4, was tested for blood lead concentration five months after the family moved into an apartment. The test revealed his concentration was more than double the accepted toxicity level. A subsequent investigation of the family’s apartment by the city department of health revealed lead-based paint and multiple city code violations. As a result of the lead poisoning, Perez allegedly suffers from brain damage that has impaired his cognitive functions, learning ability, and attentiveness such that he will not be able to complete high school. Perez claimed about $4.52 million in future lost earnings based on a four-year college degree and 47 years in the workforce.

Perez’s mother, on his behalf, filed suit against the building’s two owners, alleging their failure to maintain the premises resulted in a dangerous condition. Plaintiff also alleged violation of the state multiple dwelling law and a local law stating that a landlord of a building constructed before 1960 must presume the building’s paint contains lead and any peeling paint must therefore be removed from areas where children under 7 years of age live. Plaintiff also claimed that a city department of health inspection 10 years earlier uncovered similar violations and therefore put defendants on constructive notice of the present violations.

The jury found one of the defendants 70 percent liable and the other 30 percent at fault. They awarded plaintiff $4.65 million. After defendants moved to set aside the verdict, the court upheld the liability verdict, but reduced the award to $1.38 million.

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SHOOTING VICTIM AT WHOLESALE CLUB ALLOWED TO PROCEED WITH SUIT
A Circuit Court judge in Norfolk, Virginia has recently ruled that a woman who worked at a wholesale club can sue the club for negligence on the grounds that the store failed to adequately warn or provide security from her husband who shot her on store property. The violent assault that was the subject of this suit was the culmination of a pattern of abuse and threats from the Plaintiff’s husband. On several prior occasions store security personnel had removed the husband from store property at the direction of the manager of the store because of his aggressive behavior towards the wife. On the day of the assault the husband called the manager of the store several times demanding to speak with his wife, threatened to come to the store to find her in spite of his having been banned from the store. Later that day the husband showed up at the store, confronted the manager and demanded to see his wife. He then exited the store but remained in his vehicle in the parking lot. The Plaintiff intended to call her sister who was picking her up that night to advise her that her husband was in the parking lot. When the sister arrived the husband shot the sister and then entered the store and shot his wife.

The Circuit Court in this case ruled that the lawsuit could proceed on to trial.
 

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Once a person has been arrested and charged by the police, then his or her case is reviewed either by a prosecuting attorney or a magistrate. Magistrates are judicial officers who fulfill some of the functions of a judge but do not have the complete authority of a judge. The purpose of having the case reviewed by the prosecuting attorney or the magistrate in the early stages of the process is to determine whether the police had probable cause to believe that the person had committed the crime in question. If the magistrate or prosecuting attorney makes that determination, then
normally the case will move on to the next stage.

Also in the early stages of the process, the court will set bail. Bail is typically set by a magistrate or a judge who considers the seriousness of the offense and the likelihood of the defendant fleeing the jurisdiction, and then establishes a monetary amount that must be paid to secure the defendant’s appearance at all subsequent court hearings. Bail can be paid in a cash amount or may be paid in the form of security against a piece of real estate. More often, it is paid by the posting of a bond written by a bail bondsman.

A bond issued by a bail bondsman is a type of insurance policy with the court as the beneficiary of that policy. The defendant who obtains the bond from the bail bondsman pays a premium for that bond, which normally is a certain percentage of the face amount of the bond. If the defendant does not appear at subsequent court proceedings, then the bondsman has to pay that bond amount to the court. The bondsman then will frequently use a bounty hunter to go out and find that defendant and return him or her to the court so that the bondsman can redeem (get its
money back) its bond.

The Eighth Amendment provides that excessive bail shall not be required. That is a rather loose standard and indeed the amount of bail that will be set by the court is a very subjective matter.

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One of the most notable decisions of the U.S. Supreme Court involving criminal procedure is the Miranda decision. The Miranda case involved the Fifth Amendment to the U.S. Constitution and related specifically to the rights of a criminal suspect after he had been detained by the police. The Miranda case held that the Fifth Amendment right against self-incrimination meant that a person had the right to be advised of his or her right to remain silent, right to counsel, and right to terminate any police interrogation once it has begun after being arrested, before he or she could be questioned by the police.

Miranda does not require that these rights be given to every person who is arrested. Frequently, a person is arrested and the police have no intention of asking him or her any questions about the alleged criminal activity. If, however, the police do begin asking questions about the alleged criminal activity, then they are required to give the Miranda rights. If those rights are not given and the defendant divulges information in response to police questioning, that evidence may be excluded at trial. If the defendant spontaneously volunteers information, there is no Miranda requirement and therefore the evidence would not be excluded.

If the defendant spontaneously volunteers information, there is no Miranda requirement.

The scope of Miranda has been altered by different courts and generally is now held to apply not only to persons who have been arrested, but also to persons who have become the focus of a police investigation. Even if a suspect has not been arrested, if he or she has become the focus of a criminal investigation and the interrogation is what is deemed to be custodial—taking place in a police station or another type of police environment—then the police must give the Miranda rights to that suspect before conducting their interrogation.

A suspect or a defendant can waive the right against self-incrimination and is free to speak to the police about his or her involvement in criminal activities. Experienced police officers normally require that that waiver be in writing or be recorded so that there is no question that the suspect or defendant is voluntarily and knowingly waiving his or her rights.

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In a recent decision of the Virginia Supreme Court it was decided that wrongful death settlements must be made public pursuant to a prior decision of the Supreme Court dating back to 1988. In this particular case, even though the parties had agreed that the terms of the settlement be kept confidential the Supreme Court concluded that the public interest in disclosure of wrongful death settlements was more important than the agreement of the parties and, as such, the terms of the wrongful death settlement are to be made public.
 

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DOGS ATTACK NEIGHBOR: STRICT LIABILITY: FAILURE TO CLOSE FENCE: BITES: SCARRING: POSTTRAUMATIC STRESS DISORDER.

Johnson v. Johnson, N.J., Essex Co. Super., No. ESX-L-6874-07, December 11, 2007.

Johnson, 14, was outside on his porch when two of his next-door neighbor’s dogs escaped from the rear yard and attacked him. He suffered about 24 bites to his arms, legs, and face, requiring surgery. One of the dogs had not been vaccinated for rabies, and Johnson had to undergo rabies treatment. He now has residual and permanent scarring and suffers from posttraumatic stress disorder, causing difficulties sleeping and problems at school. He incurred an unspecified amount of medical expenses.

The parties settled before trial for $280,000, to be paid by defendant’s insurer.

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CAR CATCHES FIRE: FAILURE TO INSPECT, REPAIR OVERHEATING PROBLEM: WRONGFUL DEATH.

Mulligan v. Barrett, Ky., Jefferson Co. Cir., No. 06-CI-03827, March 13, 2008.

Mulligan, 67, had his vehicle towed to Don’s Auto Clinic twice for overheating. The second time, the repair shop owner decided to install a rebuilt engine. Two days later, Mulligan left his car idling for about 30 minutes while he was sitting in it. A fire erupted in the engine compartment, engulfing Mulligan in flames. He suffered third-degree burns over 45 percent of his body, including his airway, and died three days later. His medical expenses were about $102,000, and his funeral expenses were about $3,900. Mulligan had been a butcher earning $12 per hour and is survived by his five adult children.

The jury awarded plaintiffs $3.26 million.

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PHOTOGRAPHER REPEATEDLY SENDS DESTROYED WEDDING PHOTOS TO NEWLYWEDS: HARASSMENT: EMOTIONAL DISTRESS: VERDICT: PUNITIVE DAMAGES.

Vickers v. Elden, W. Va., Ohio Co. Cir., No. 02-C-290, November 28, 2007.

When the Vickers got married in 2000, they hired Elden and his photography studio to take the wedding pictures. They paid Elden in full for his work. The next year, however, he began sending the Vickers and the groom’s parents, the Murrays, as well as other members of the family, cut up photo negatives and photos with the faces scribbled out. He also sent shattered photo CDs. The dozens of mailings were allegedly sometimes accompanied by poetry written by Elden and became increasingly threatening and disturbing. The Vickers and the Murrays repeatedly asked Elden to stop sending the materials, but he continued. They suffered emotional distress as a result of the alleged harassment.

The jury awarded plaintiffs $550,000, including $400,000 in punitive damages. The bride was awarded $100,000, the groom $25,000, his mother $20,000, and his father $5,000.

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TRACTOR-TRAILER STRIKES VEHICLE IN INTERSECTION: FAILURE TO OBEY SPEED LIMIT: VICARIOUS LIABILITY: WRONGFUL DEATHS

Powell v. Dean Foods Co., Ill., Cook Co. Cir., Nos. 03-L-015077 & 03-L-016261, Nov. 2, 2007.

Chakonas, 17, was driving her car with two passengers in it, Kakidas and McDonald, also both 17. As Chakonas attempted to make a left-hand turn at an intersection, a tractor-trailer, allegedly traveling approximately 10 m.p.h. over the speed limit, struck Chakonas’s car. All three occupants suffered fatal injuries.

The jury awarded plaintiffs $20.2 million, finding defendants 60 percent liable. It awarded $8 million each to the Kakidas and McDonald family, and $7 million to the Chakonas family, which was reduced to $4.2 million because of the jury’s finding that she was 40 percent contributorily negligent.

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