It’s not every day I land on the front page of the local sports section, above the fold no less. But I think the story fits in with personal injury law given the countless ways people get hurt, so I want to discuss it. (Runners’ safety a high priority as days grow shorter.)
It’s about safety, personal responsibility and assumption of risk. It is, in essence, about risk management. In this case, the risks are tripping over the unseen or being hit by a car when running in the dark. And the management part revolves around lights and reflective clothes. And fashion be damned.
The theme of personal responsibility is one I often use at trial. Defense lawyers like it too. So in picking the cases to take, it’s a crucial parts of the analysis, regardless of whether it is a simple trip and fall on a broken sidewalk or a complex medical malpractice case. A jury wants to know what each of the parties did to prevent the incident that led to the injuries.
Oftentimes there is no clear cut answer, but a long sliding scale of grays. For example, a fall over a busted up portion of sidewalk may mean one thing to a juror if it occurred to a healthy 25 year old in clear weather in broad daylight (the failure to see that which is open and obvious) and something completely different if it’s a senior citizen walking the same sidewalk at dusk in the rain. In either case a juror will want to know what the injured person did to keep themselves safe as they measure the liability of the owner of the land.
And yet, cases land in the courts all the time where it seems as if the plaintiff’s attorney simply ignored substantial culpable conduct from his client. I can’t imagine it is the more experienced attorneys that are accepting such cases. It’s important to tread warily on matters where there may be a large degree of comparative fault.
There is also another lesson in this. The gut reaction of most defense attorneys, I think, would be to kick me off a jury panel in a civil case once they learned what I do for a living. But after reading the above, do you think they would be making a mistake in doing so?
Returning to the article, here is the money quote from yours truly for those too lazy to read the story:
“The headlamp is a great device to see and be seen – no matter how dorky it looks.”
(Eric Turkewitz is a personal injury attorney in New York)