QUESTION:

Yesterday a daughter of a friend got hurt at mall and now she is in surgery and might lose an arm. I think she was climbing on some sculpture. Anything we could do?

ANSWER:

A personal injury case based on negligence may be filed. Ordinarily, the burden of proving negligence rests on the plaintiff. However, a presumption of negligence on the part of the defendant may exist, called the doctrine of res ipsa loquitor, provided that the following requisites are present: That the accident is of a kind which ordinarily does not occur in the absence of someone’s negligence; that the accident was caused by an agency or instrumentality within the defendant’s (or defendants’) exclusive control; and ; that the accident was not due to any voluntary action or contribution on plaintiff’s part. The existence of these conditions is usually a question of fact for the jury. “Where reasonable persons may differ as to the balance of probabilities, the court must leave the question to the jury.” [Blackwell v. Hurst (1996) 46 CA4th 939, 944, 54 CR2d 209,. Owners and managers are required to use due care to eliminate dangerous conditions on their property so as not to expose tenants, customers and similar users to unreasonable risks of harm. Therefore, a user’s assumption of a risk or hazard on the premises—even one that was known to the user—is “secondary”and comparative negligence principles apply. [See Curties v. Hill Top Developers, Inc. (1993) 14 CA4th 1651, 1656, 18 CR2d 445, 448]. It would be best to seek personal assistance from a lawyer in order to help you in filing a personal injury claim.

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