Re: I NEED A SHARP, AGRESSIVE INJURY LAWYER ...

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Hi Lisa,

You are right to be careful who you listen to on this board.
Many people here don't have a clue about the law, and they
feel free to post here anyway. I doubt many people who post
responses here are lawyers at all. I am not an lawyer
either, but as a law student I would like to take the
opportunity to analyze your problem, that is in no way advise
though, and should not be taken as such. You can do what you
want with the analysis, it is purely academic. As for
finding a good personal injury lawyer I suggest you contact
the California State Bar. www.calbar.org and get a referral
there.

Analysis of the problem presented here (the mountain your
lawyer will have to climb to prove your case, if you have
one):

Negligence is defined as an act or omission to act which
falls below the standard of reasonable care established by
law.

To establish a case of negligent the plaintiff must prove
1. There was a volitional act or omission to act
2. There was a duty of care owed by defendant
3. There was a breach of the duty to care owed by defendant
4. Actual Cause (cause in fact)
5. Proximate Cause (legal cause)
6. Damages

In the facts you presented the Airline employee may have
fallen into the category of omission to act (failure to act
where an act as a reasonable person was required). How do we
establish that there is a failure to act? First we look at
was there a duty required on the part of the Airline or
someone else? This can be proven by statute or by custom.
In other words one will have to look at the California
Legislation (assuming this happened in California) for a
statute that requires an Airline to secure overhead baggage
compartments, or if the duty is owed by persons who store
belongings in the overhead compartment. A statue could make
it negligence per se (an inference of negligence) or merely
evidence of negligence depending on how California treats
this subject (again assuming this happened in California).
Absent a statute it would need to be proven by custom that
other Airlines ensure that overhead baggage storage
compartments are secured by the Airline employee, or persons
who store property in the storage compartment are the ones
required to secure the overhead storage compartment. This
would mean expert testimony would be required. It would need
to be proven that a reasonable person owes a duty of care in
this situation. Depending on what the Statute or Custom is
in this situation will make the duty owed or not. Courts
will also look at the duty owed to consider what is the "zone
of danger" or area where duty is owed to protect against
foreseeable risk of harm to foreseeable persons within a
certain area. This is the most common and accepted view in
the courts known as the Cordozo view. In the facts presented
here there is foreseeable risk of harm to persons seated
under an overhead baggage storage compartment from falling
baggage or other items stored there, and persons seated there
has met a foreseeable plaintiff test. The facts presented
here lend to a duty of care owed to protect persons from risk
of being harmed by falling baggage or other items stored
overhead in an airplane, and a reasonable person could
protect against this harm by securing the storage
compartment. The question is who is the duty owed by the
Airline or Persons who store belongings overhead?

Next after establishing a duty of care owed it must be
established that there was a breach of the duty owed. The
breach would be established by looking at the benefit vs. the
utility of securing or not securing the overhead
compartment. Since there is very little cost in ensuring the
overhead compartment is secured vs. the risk of harm that
could be caused by items falling out of the overhead
compartment, so a reasonable person would have secured the
overhead compartment, and since this duty of care was owed
and there was a failure to do so there has been breach
established. The question still remains who owes the duty of
care the Airline or the person who stored the item overhead.

Next after establishing a duty and a breach of duty there
must be a showing that the injury or harm is a result of the
falling item from the overhead compartment. It is the burden
of the plaintiff to show that his/her injury is a direct
result of the act or failure to act where required. The
plaintiff must prove that headaches and shoulder pain is a
result of this incident. Also the courts will look at the
Cordozo view here again, and the plaintiff must have been in
the "zone of danger" in this case it is apparent that is
true. The plaintiff must establish that but for the overhead
compartment was not secured the plaintiff would not have
suffered injury. At this point another doctrine of law may
be considered which is "res ispsa loquitur" (the thing speaks
for itself). With this doctrine there are three things to
consider i)this type of incident does not ordinarily occur
absent negligence ii)the defendant had exclusive control of
the injury causing instrument iii)physical injury must be
present. The facts here do not support this doctrine and
therefore the burden of showing all the elements of
negligence will be taken by the plaintiff here. This is
because the defendant did not have exclusive control of the
instrument that caused the injury (the unsecured overhead
baggage compartment). The fact is other persons have free
access to the compartment, and it cannot be exclusively
attributed to the Airline or Any Person who stores belongings
there.

Next there must be a showing of proximate cause (legal
cause). The issue here is generally foreseeability. Was
risk of harm foreseeable, the results foreseeable, and a
foreseeable plaintiff. Results are almost always
foreseeable. Intervening causes will be considered here as
well. In other words was another thing was introduced that
attributes to the results. Defendants are liable for
foreseeable intervening causes such as medical malpractice,
subsequent disease, negligent rescue etc. And a defendant
takes his victim as they find them. In other words if you
had a condition that was present before the incident that was
worsened or only came into the light because of the incident,
such as a tendency to have migraine headaches that was not
known but became aggravated because of the incident the
defendant will be liable for the results. Defendants are not
generally liable for bizarre results though. In this case
harm because of a falling object from an overhead storage
compartment in an airplane is not bizarre. It is
foreseeable, the results are foreseeable, and the plaintiff
is foreseeable so proximate cause has been established in
this fact pattern to either the Airline or the person who
stored equipment in the overhead compartment (depending on
who actually has the duty owed).

Finally there must be damages. These damages are past and
future medical bills, past and future pain and suffering,
past and future loss of wages or income. There is no
punitive damages unless the conduct of the defendant was
gross negligence, wanton or reckless in nature, which it is
not here. Add those damages up and there is a potential for
a case of negligence. Keep in mind that attorney fees,
expert witness fees and court costs are not recoverable, and
plaintiffs must bear those costs. Damages are not offset to
the defendant by collateral sources (insurance or other
benefits conferred on the plaintiff).

Lest we forget the defenses of the defendant.

1. Contributory Negligence in Contributory Negligence
Jurisdictions (no recovery if plaintiff even 1% at fault)
2. Comparative Negligence in Comparative Negligence
Jurisdictions (recovery sometimes limited to defendants fault)
3. Assumption of risk.

These are the defenses that the defendant will raise, not to
mention the risk/utility factor as mentioned above.

Now, the question is did you assume a risk by sitting in the
seat below an overhead storage compartment? First of all you
have to know and appreciate the risk or should have
reasonably known about a risk in order to assume one, and
chose to encounter the risk voluntarily. And as a plaintiff
you have a duty to mitigate damages as well. This is the
defense that will be asserted in your case along with
comparative or contributory negligence whatever applies. I
don't think this defense fails here, because it is very
common practice for people who sit down in an airplane to
check the overhead compartment above them to make sure it is
safe. I would not doubt that there are warnings posted all
over the place in the plane as well. Therefore, your case no
matter how greatly it was presented will likely be either
dismissed or reduced to a point that it provides very little
of a worthy legal argument if any. The only rebuttal you have
is the "last clear chance" doctrine which basically means
that defendant had the last clear chance to protect against
the risk of harm, and the plaintiff did not. But, I doubt
that would be the issue here since either you the Airline or
the Person who stored the belongings depending on who has the
duty could have prevented the risk.

Then weigh whether the case should go forward or not. So for
example if plaintiff had past medical bills and medicine of
$1,500, future medical bills of $1,500, lost wages for 7 days
$1,000 future lost wages of 7 days for future medical visits
$1,000, past pain and suffering of $500 and future pain and
suffering of $500 totaling $6,000, and attorney will cost
$2,400 (40%) expert testimony will cost $2,600 and court
costs will be $1,500 then all the plaintiff will be left
paying $500 out of pocket to even bring a case up it would
not be worth the effort. These numbers are completely
produced out of the air, and do not represent what this case
would cost. It is only here for example of what must be
considered.

Another thing to consider is that you would be treated as an
invitee in this situation since the airplane is a business
purpose vessel and you most certainly paid for the airfare.
As an invitee the owner of the chattel (airplane in this
case) has a duty to inspect for dangerous instruments, and a
duty to warn or make safe. I would be assuming here, but I
assume that airplanes warn against falling objects from the
overhead compartment, and the risks involved. The airline
has met their duty in this case if they did provide warnings
and inspections, and the first issue of duty has been striken
from the negligence in the first place and without a breach
of duty there is no case. What you are trying to assert is
that the airline has a duty not only to inspect and warn but
to make safe, which it is an either or situation not both
(warn or make safe). Now, on the other hand if there is no
warning then they must make safe. Go back to the airplane
and check for a warning, or somewhere a warning documented.
I bet you will find one.

Bottom line based on the facts I have analyzed you don't have
a case for negligence like OO pointed out. Unless you can
prove that the device that secures the compartment was faulty
(highly unlikely you could prove that, since you presented
facts that suggest it was a failure to secure the compartment
that caused the injury in the first place) But, feel free to
discuss it with an attorney from referral of the State Bar
(www.calbar.org) By aggressive do you mean that you expect
allot of money from this because you plan to sue the big
airline company? Don't expect too much, you will be limited
to your damages if you even have a case, which I doubt you do.

On 10/15/05, Lisa wrote:
> About 10 months ago I was injured inside an airplane,
> coming back from Vegas to 0ntario California
>
> I was already seating and the plane was about to take off
> when suddenly a piece of luggage landed on my head and
> into my right shoulder, I don't know I may have a fracture
> on my sculp, because I been having tremendous very painful
> migrane headaches and I can't sleep and also can't sleep
> on my right side because of the terrible pain on my right
> shoulder due the injury
>
> Yes I did brought it to the attention to one of the flight
> attendants when it happened and all he said was: it's not
> the Airline's fault but the passengers negligence to lock
> the locker after he put his luggage inside, and he went on
> and brought me 2 aspirins and a can of soda for the pain
>
> Well I know for a fact that flight attendants have to
> check that each locker is been locked, before the planes
> take off, obviously this particular locker was open
>
> I know the Statue of Limitations is 2 years in this State
>
> Are there any sharp, agressive Lawyers that want to take
> my case? or can you recomend one? I am in Riverside County
> in California, please e-mail me at: luvtostudy@yahoo.com
>
> Thanks
>
> Lisa :)