Know the Law In and Out: Developing the Right Game Plan to Keep Costs Down

Plaintiff Attorney: Bradford G. Moore

City, County, and State: Vancouver, Washington – Clark County

Claims Alleged: Personal Injury, Breach of Contract, Negligence

Amount Claimed: Estimated $200,000 – $500,000

The Overview

A Smith Freed Eberhard associate recently won an impressive Motion for Summary Judgement by way of a thorough analysis of relevant case law that ended up eliminating the need for costly discovery.

The Background

Smith Freed Eberhard’s client sold her house to the family of the Plaintiff in Clark County, Washington, at which time plaintiff was just four years old. Ten months after moving in, Plaintiff fell from a deck stairway that was missing its railing, resulting in a head injury that caused him seizures throughout his childhood (of which his most recent was approximately five years prior to his filing suit). Our client agreed that she had promised to install the railing, but that she did not make those arrangements until after the incident fall. Because the statute of limitations tolled until the Plaintiff became an adult, he was able to bring suit for personal injuries alleging both negligence under landowner/premises liability theory as well as breach of contract. Plaintiff also claimed a lifetime of lost wages because the only job he wanted (now, as a 20 year old) was as an underwater welder – a position no longer possible for him on account of his seizure history rendering him unable to obtain scuba certification.

The Strategy

As to the negligence claim, the defense cited case law that the seller had no duty for an open or obvious visible defect after the sale, and especially after the buyer had sufficient time to inspect.  Given that the defect was clear for the ten months during which the Plaintiff resided in the home prior to the accident, the Plaintiff caved when presented with this case law and research and dropped that claim.

As to the contract claim, the defense argued that the agreement to fix the railing had to be in writing because it was for land sale. However; that argument failed when Plaintiff’s father claimed to remember a written agreement to that end that had been lost in the intervening years.  Because the accident and sale occurred in 1996, similar instances of fading memory and misplaced or poorly preserved documents were abundant. Undaunted, it was then argued that the Plaintiff, at 4 years old, was not an intended third party beneficiary of the agreement and therefore had no standing to enforce the agreement. Simply put, if they had a problem with it, Plaintiff’s father (the purchaser of the home) should have sued immediately following the accident. In response, Plaintiff tried to create sufficient evidence by claiming that his father had told seller’s agent about his child’s presence being the reason why they wanted the railing. The case law and the judge required more than that, however, and Smith Freed Eberhard’s motion for summary judgment was granted.

The Outcome

By undertaking such a thorough analysis of relevant case law and moving appropriately for summary judgement, Smith Freed Eberhard attorneys saved yet another client significant costs. Ultimately, there was no need for discovery, medical experts, depositions, or even a site visit to the house. The defense won on the law alone – a quick and economical dismissal for a very appreciative client.

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