Nursing Home Negligence

Nursing Home Negligence

There comes a time in a person’s life, where they or their family members need to decide if a long-term facility, such as a nursing home, is the right move. One needs to be ensured that they will be taken care of in a nursing home and that no negligence will occur. Families worry about their loved ones just as much, and it is important for all that their mother, father, grandparents or any other relative is safe in a nursing home and does not fall victim to nursing home negligence. Although there are many fantastic nursing homes out there, there are many cases of nursing home negligence. In today’s era of aging baby boomers, nursing homes will only get busier, and thus more negligence cases may arise.

Nursing Home NegligenceNursing home negligence can be physical or emotionally caused. For example, in 2013, CTV news reported that an 85 year old woman was being mistreated in a nursing home in Peterborough Ontario. She was seen having a feces-covered rag waved in her face and also having her diaper changed with the door wide-open. There were also suspicious circumstances surrounding a black eye and bruises. Another example of nursing home negligence includes a growing concern regarding residents being given potentially lethal anti psychotic drugs, which can be used to help aggression and acting out. There are certain types of these drugs that can cause severe adverse reactions and many residents, who are not even prescribed these drugs, have been victim to this adverse reaction as they have been ingesting the drug. Other types of nursing home negligence include dropping residents, yelling at residents, neglecting residents and leaving residents unattended for hours upon hours, which can create bedsores. According to the Long-Term Care Homes Act, Nursing homes have a zero-tolerance policy for any time of negligence or abuse. Therefore,  if negligence occurs, those people injured, should be compensated.

Nursing homes are expected to provide a safe environment for those living there, and many are! A nursing home should be a clean, happy and pleasant place where people can live without worry of negligence. However, if you are a resident of a nursing home, or you are a loved one of a nursing home resident, that has been victim to nursing home negligence, do not hesitate to contact our personal injury law firm to find out what your legal rights are.

The Dreaded Pothole Situation

Car Accidents and Potholes

They seem to be everywhere. They cause bumps, delays and even car accidents. What are they? They are the dreaded potholes.

After the winter we have just had, it seems that the pothole situation is at an all-time high. They are causing damage to vehicles and causing car accidents if someone loses control when hitting a pothole.

If your car has been damaged in an accident caused by a pothole, or simply by the pothole itself, what are your avenues to seek compensation for such damage from the accident? Can you hold the municipality responsible for any damage that was caused to your vehicle due to a pothole? It is important to understand the standard of care for a municipality as it relates to potholes and any damage to vehicles or accidents potholes may cause.

Justice Leach of the Ontario Superior Court of Justice spoke to this issue in the recent decision of McLeod v. General Motors of Canada Limited et al., 2014 ONSC 134. This case was about a young woman who was driving her vehicle on a country gravel road when she lost control of her vehicle and had a car accident due to potholes on the road. She sustained serious and life-threatening injuries as a result of the car accident. The young woman began an action against the rural municipality.

Justice Leach determined that the action should be dismissed. This means that the municipality would not be held responsible for the accident caused by the potholes. For the municipality to be responsible, certain things must transpire. They are the following:

Potholes

  1. Official Complaints to the Municipality should be made.

This does not mean complaining around your city or town, but actually submitting formal complaints to the municipality about the potholes.

  1. The condition of the road must be in a state of disrepair.

A road that is in a reasonable condition, does not count! For instance, a gravel road is expected to have bumps and holes and thus it is not in a state of disrepair.

Additionally, these two points have to coincide. What this means is, even if the road is in disrepair, the municipality can rely on the defence that it had no knowledge of the defect and thus it is not held responsible for any accident.  The municipality has the responsibility to take reasonable steps to prevent the defect from arising by having regular systems of grading and it must meet the minimum standards of inspection and pothole repair. If it does these things, it may not be held responsible for any accident and/or damage that may occur as a result of potholes.

Potholes are going to continue to be the bane of many peoples’ existence. They are something that we all have to live with, however they should be fixed as soon as reasonably possible by the municipality. You have the responsibility to avoid dangerous accident-causing situations, if possible and you must make formal and detailed complaints about potholes, so that if any damage occurs because that pothole has not been reasonably fixed, you will have avenues of recourse!

If you have sustained personal injury from an accident or car accident, do not hesitate to contact our personal injury law firm to find out about your legal rights.

 

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Beware: Social Media and the Courtroom

Social Media can be a Plaintiff’s Enemy

Facebook has taken over the globe in unimaginable proportions. Many people use Facebook daily, especially for posting photographs of fun nights out with friends and family vacations. Privacy settings can be set quite high; however it is important to know there might always be a way around privacy settings. As an injured party, Facebook and other social media websites may become your enemy.

When you are involved in an accident, personal injury has been sustained, and a law suit has commenced, it is important to take into consideration that surveillance may be placed upon you. Another consideration to be made is that, after an accident, the opposing side may very well do investigating by way of social media sites too. When you have suffered personal injury from an accident, be sure to take extra precaution of what you are posting on these websites, because any inconsistencies between what you are saying and what is being shown, may be brought to light, despite those photographs not actually depicting the true extent of your pain from your accident injury that you may have most of the time.

Counsel has not been afraid to use Facebook and other social media cases for credibility issues during questioning and in Court for people who are claiming pain and suffering from injuries sustained in an accident.  In the Ontario Superior Court of Justice case, Kourtesis v. Joris, a young woman’s photograph postings led to her claim for damages for pain and suffering to be dismissed. The young woman claimed her social life had been ruined by the accident and subsequent injuries; however Facebook photographs depicted her out partying with friends. This led to the demise of her “ruined social life” claim and in the end, undermined her claim to have suffered other problems from the accident.

Despite irrelevant searches being looked down upon, Courts have tended to find that photographs relevant to accident injury claims on social media sites should be disclosed. For instance, if you manage to climb the tallest mountain, this should be made known. Lying and hiding those facts, even if you do have legitimate injuries, could lead to your case failing in every way. If you are on social media websites, be careful as to what you post, even if you are not part of a law suit. You never know how people may gain access to your profiles and nothing is off limits if it is relevant to your case. Always tell the truth and admit, for example, if your injuries from an accident do not cause you constant limitations and pain.

If you have sustained personal injury from an accident, do not hesitate to contact our personal injury law firm to find out about your legal rights.

 

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Are you a Victim of a Hit and Run Accident?

Victim of a Hit and Run Accident? You Have Legal Options!

Picture this: You are driving your bicycle along the street carefully and prudently. You are using your hand signals and watching your surroundings. Despite this, a car comes behind you and strikes your bike causing you to have an accident. Even if the car only clips you, your balance is thrown off and you fall from your bicycle. An accident has happened.  Now picture another scenario: You are driving your car down the street carefully and prudently. You are using proper signals and watching your surroundings. Despite this, another vehicle strikes your car causing you to spin out of control and have an accident. These two accident scenarios I am putting forth have something in common: The vehicle that struck the cyclist and other motorist causing an accident, has fled the scene. Not only has the vehicle fled the scene, but the driver is never heard from again. This is not an uncommon situation, especially in busy cities such as Toronto.

As the victim in situations such as these, what are you to do? How are you expected to get compensation for any injuries that were sustained due to the hit and run accident?

When the other vehicle sticks around, usually it would be the driver of the vehicle that caused the accident that would be brought to court. However, if it is impossible for this to occur, the victim of the accident is forced to bring a claim forward against their own insurance company. The problem is, just because they are your own insurance company, it does not mean that they will easily compensate you for your injuries that you sustained in the accident. They become the Defendant in the case and you are the Plaintiff, thus you are put into an adversarial relationship with one another.

One of the major issues in cases such as these comes when there is a question of liability. Liability concentrates on who was at fault for the accident and how did it occur. A real situation occurred when a woman was driving her bicycle in Toronto and was struck by a car before it fled the scene, a witness also saw this accident happen. Despite the eye-witness, it would maybe be difficult to prove that she was indeed struck by a car causing the accident or if her wheels got caught in the streetcar tracks causing the accident. This issue with liability, does not necessarily mean you will not be compensated for your injuries, and you certainly always have the right to proceed to trial, but it may impact how much you’re awarded. It brings a risk factor, that would not necessarily be there if the unknown vehicle driver stayed at the scene and admitted to striking the cyclist.

It is for these reasons, that is important to have your lawyer bring forth all of the evidence, including your expertise as a cyclist and the eye-witness report, forward so that a settlement can be made in your favor or a judge or  jury will understand what really happened and you can be compensated for your injuries and other damages caused as a result  of the accident. When  hit and run occurs, cases can become difficult. However, do not think that just because there is no individual that you can bring a claim against, that you have no legal options to pursue…You do.

hit and run accidentIf you or a loved one has sustained personal injury from a hit and run accident, or other type of accident, not hesitate to contact our personal injury law firm about your legal rights.

 

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Plaintiff awarded 49K for Amputated Finger Injury at Premiere Fitness

Nearly 50K Judgment Against Premiere Fitness for Not Having Proper Functioning Cleaning System in Place When Man Injured.

In the recent case of Dhaliwal v. Premier Fitness  the plaintiff Sukhjinder Dhaliwal sued premier fitness for a personal injury he suffered while exercising on a weight machine. He sought damages for pain and suffering, as well as compensation for loss of past income, loss of future earning capacity, and some special damages for medical expenses.

What happened?

amputated finger bandagedThe facts were fairly interesting. On the day in question the plaintiff was exercising his legs. At some point he began the weight training part of his exercise regime by using the vertical leg press machine. He told the Court that he was familiar with it and that he had probably used it over 100 times. The vertical leg press is the machine where a person lies on his back and pushes the square metal platform up with his legs. There are plated weights on either side of the machine. Once the weights have been moved to this upward position, the person is then able to move aside, with their hands, the locking mechanisms the weights otherwise rest upon. This allows the weights to be moved up and down freely with the legs, and with as many repetitions as desirable.  Once the repetitions are complete, the person again pushes the weights to the upward position, and then moves the handles of the machine inward again to restore the safety locking mechanisms.  When the “weight sled” is safely returned to its original locked position, the person using the machine can then get up from the bench.

The plaintiff did 3 sets. After his third set he went to get a drink of water. He was wearing Nike workout shoes. He had to walk about 90 feet to the fountain. When he drank from the water fountain that day, the plaintiff noticed that the floor around the fountain was soaked with water, and then he realized that his shoe was wet. Getting his shoes wet around the water fountain had happened to him before.  When this had happened in the past, he had informed the management of the club. As he walked back to the leg press machine he “stomped” his feet to try and get the water off them. He got back to the machine and took a look at his shoes and thought that they were ok.

He got back on the machine and began to push the weight sled upward. His right foot slipped off the foot platform toward him.  At that point, his hands were still in the handles on the safety mechanisms.  When his right foot slipped off the platform, he lost his balance and his whole body moved to the left.  He knew he could not hold the entire weight with only one leg, so he quickly tried to move the safety lock mechanisms back into place.  He was not successful.  Instead, his right hand moved toward the downwardly moving weight sled, and the end of his right pinky finger got caught under the weight sled and was crushed. The plaintiff maintained that his right foot slipped off the foot platform as a result of the water that was still on his shoes from the water fountain area.  The plaintiff testified that it was not the weight itself that was the problem.  He had lifted even greater weight in the past.  He was not worried about being able to lift the 365 pounds.

Sukhjinder’s Injuries

The accident effectively amputated the end of the fifth finger of the his right hand.  At the hospital, the plaintiff went through a surgical revision of this amputation under a regional anesthetic.  The wound was cleaned, stitched and dressed.  The plaintiff took only a few days off from work, and returned shortly to his job.  He was in occupational therapy for some three months.  He made a relatively speedy recovery, but the amputation is a permanent and serious disfigurement of the his right hand. Unfortunately his nail bed did not stop growing and he had to return for more surgery to remove this still-growing nail bed.  He spent just one day in the hospital, but the surgery left him with further stitches and on medication and caused him to be off for work for three weeks.

Liability – Was Premiere at fault?

The question that was asked was whether Premier Fitness were in breach of their statutory duty of care, or whether they kept the fitness club premises reasonably safe for its members (as required by s. 3(1) of the Occupier’s Liability Act.)  The plaintiff’s lawyer relied on a lot of “supermarket cases” which in a sense, is a similar situation.

The first thing the Court looked at was the maintenance system that was put in place by Premier Fitness.  The Court noted that the club had contracted a full time cleaning staff.  The arrangement was to have one male and one female cleaner in the club at all times during operating hours.  Their directions were to “keep it clean”.

The fitness club staff and other employee were also expected to help clean the club.  If any of them became aware of spilled water, they knew where the mops were and understood that there was a common sense approach on quickly dealing with cleaning up anything messy.  The club further testified that their members were somewhat sloppy when they filled their water bottles at the fountain, causing water to be spilled.  They acknowledged that whenever they noticed water they would put a yellow wet floor sign in the area.  There was also a perforated mat around the water fountain which would allow water to move to the floor.

The plaintiff, on the other hand, argued that the water spilling from the fountain was a chronic problem and that the defendant neither fixed the problem nor put a system in place that would reasonably ensure the safety of its members.  There were no regular inspections at the water fountain area despite its chronic water spillage problem.  There were no logs kept to prove that such inspections had taken place.

What did the Judge say?

 The Judge was satisfied that the plaintiff established in all circumstances of the case that the defendants failed in their affirmative duty to make Premier Fitness reasonably safe for its members by taking reasonable care to protect them from the foreseeable harm of chronic water spillage.  The Judge reached the conclusion not because of any deficiency in the maintenance program that Premier Fitness devised for their fitness club, but rather because there is a complete absence of evidence that this maintenance program was implemented and in proper and active use on the day of the plaintiff’s accident.  In other words, they say they have a system in place but there is no evidence that the system in place was working.

There is little point in having an effective maintenance system in place to protect customers, patrons or members of an institution if that maintenance program is not consistently and routinely followed and practiced.  If a store, airport, shopping mall, grocery store or gym has a maintenance program in place; it must be fully and properly implemented in practice especially on the date when someone injures themselves.  The Judge realized that there was some sort of reasonable maintenance system in place at Premier Fitness.  He recognized that there was a floor mat put down around the fountain.  He realized that there was a janitorial closet close by filled with mops and that any employee in the facility was required to quickly clean up if they saw there was water.  The Judge found that the gym was not supposed to guarantee any absence of water on the floor.  For example, it would be unrealistic to simply remove the fountain, exchange the fountain for a different fountain or hire someone to maintain a visual guard of spilled water.  All of this is unrealistic.  What the Judge was saying is that there was no evidence to prove that the defendant cleaner’s routinely followed any type of reasonably strict cleaning schedule and/or maintained a log of regular inspection to ensure the defendant’s direction were followed in practice.  Also, the judge realized that the plaintiff argued that there was no evidence that this maintenance system was being followed on the day the plaintiff was injured in the fitness club.  In the Judge’s words, “it may have been operational – there is just no evidence before me that it was operational”.  There was no evidence that there was even a single cleaner on duty in the defendant’s fitness club.  No such cleaner was called as a witness to give evidence.  No business records were tended to show that a cleaner had been at work that day.  None of the witnesses that were called to give evidence in the case testified about the presence of a cleaner in the fitness club on the day of the accident.  The Judge noted that presumably, had there been any cleaners present at the fitness club throughout the club’s hours of operation on the date in question, perhaps the defendant’s maintenance system could have been contemplated.  The Judge found it would have been easy enough to establish that fact but rather there was no evidence at all to suggest that this aspect of the maintenance system was operational that day.  Secondly, even assuming that if there were two cleaners in attendance at the fitness club on the date of the accident, there was no evidence presented as to the activities of those cleaners on the day of the accident.  There was nothing showing that the water fountain area was inspected or cleaned on any part of that day.  There is no evidence that on the day in question, anyone placed a yellow wet floor sign on the floor to warn of the potential dangers of the wet floor.

The plaintiff proved in the case that the defendants were in breach of their duty and care.  An adverse inference was drawn against the defendants for their failure to call evidence on any of the above.

Accordingly, for the reasons above, the Judge was satisfied on a balance of probabilities that Premier Fitness failed in their legal duty to make the gym reasonably safe for their members by taking reasonable care to protect people from foreseeable harm on that day.  They permitted puddle water to collect near the water fountain, near the weight room knowing that members frequented the water fountain during the course of their workouts, on a regular basis through that day.  The Judge found that the accident was in fact caused by the water on the plaintiff’s shoe.  The Judge found that the plaintiff’s right foot slipping off of the leg press platform on the vertical leg press machine was the only plausible explanation for that accident which caused his injury.  The total amount of compensation awarded to the plaintiff was $48,884.84.

However, the Judge found that the plaintiff candidly admitted that he knew he was operating the vertical leg press machine after stepping in water and also admitted that operating the vertical leg press machine could be dangerous if his shoes were wet.  He personally foresaw the risk of operating the leg press machine with wet shoes.  The Judge found that he was in fact negligent in failing to ensure that his shoes were not wet before beginning his fourth set on the machine.  There were a number of sensible options that he could have taken to prevent his injury.

Pain and Suffering and Loss of Income Award

The Judge in effect cut the $48,884.84 given that he found that 50% of the problem lied with his own negligence.

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