To Win An Accident Case Requires More Than Injuries You Must Have A Breach Of Duty

Inexperienced attorneys are often lured by serious injuries into taking cases with liability problems.  Clients sometimes believe that liability in accident cases is predicated on the extent of the injuries.  In a recent Florida case the plaintiff got drunk in a bar and then injured himself climbing on an artificial rock climbing wall. Stephen Barrett, then 35, was at a bar in Waterford Lakes Town Center, an outdoor shopping mall. He was climbing down the 25-foot rock wall when his foot got caught on one of the rocks. He did a cartwheel in the air and landed on the metal trailer attached to the wall. His leg was impaled on the outrigger of the trailer. He now has a permanent seroma and he fractured his wrist.

The siren song of serious and obvious injuries caused the plaintiff’s lawyer to take a case he couldn’t win.  The defendant’s toxicologist stated that Barrett had a blood alcohol level of twice the legal limit. Barrett argued that the defendant, Simon Property Group, specifically put the wall in front of the bar. Barrett stated that it was foreseeable that a rock wall located in front of a sports bar would attract climbers who had been drinking.  This was a howler of a lawyer’s argument that didn’t impress the jury.  The elements of a successful personal injury claim are 1. duty of care, 2. breach of the duty and 3. damages that are legally caused by the breach.  The jury didn’t believe the property owner breached any duty to Barrett.  They felt, not unreasonably, that Barrett was responsible for his injuries.  Juries don’t abandon their common sense just because a plaintiff has significant injuries.  They will expect plaintiff’s counsel to provide a reasonable explanation as to why the defendant is at fault.

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