Facebook Usage History Ordered Produced

Social media can be a useful investigative tool for defendants.  In an interesting twist, a Nova Scotia court has ordered the plaintiff's Facebook usage history produced.

In Conrod v. Caverley, 2014 NSSC 35 (S.C.), the plaintiff claimed she sustained injuries in a motor vehicle accident that compromised her ability to work and participate in recreational and social activities.  She complained of problems that limited the time she is able to spend using websites like Facebook.  The Nova Scotia Rules require "relevant" documents be produced.

Although Justice McDougall was not prepared to order production of the plaintiff's private portion of her Facebook account, he was satisfied the usage records were relevant and ordered they be produced:

[55]         I am satisfied that the Facebook usage data requested by the Defendants is relevant to whether Ms. Conrod's injuries have affected her ability to concentrate and the information should be produced.   The privacy interests implicated in this case are far less significant than in Laushway and Bishop where production of a party's entire hard drive was ordered so that evidence could be extracted by a third party.  The usage records sought by the Defendants can be easily obtained by Ms. Conrod and the contents will not reveal any potentially sensitive personal information about her internet activity such as websites she visits or private conversations she participates in on the internet.

Personal Injury Settlement Mills

Personal injury lawyer advertising in Milwaukee is absolutely over the top.  The other day, I was at the dentist and a T.V. was on.  During just one commercial break, I saw five Milwaukee personal injury lawyers ads.  Whether it is T.V. advertising, personal injury lawyers' letters, or phone calls after a car accident, consumers need to be very careful about the law firm and attorney they choose to represent them after an accident.

To get an idea of what some of the problems can be with certain personal injury lawyers, I suggest reading Atlanta lawyer Ken Shigley's post “One call that’s all?” Personal injury “settlement mills” blasted in Georgetown Journal of Legal Ethics.
Wisconsin Personal Injury Attorneys

Last week, we blogged about a summary judgment decision dismissing an occupier's liability claim.  This week, our focus is on a slip and fall action that was dismissed at trial.  Once again, the Court confirms that occupiers are not held to standards of protection and what is reasonable depends on the circumstances.

In Souliere v. Casino Niagara, 2014 ONSC 1915 (S.C.J.), the plaintiff slipped and fell in a buffet restaurant.  A staff member saw another patron drop a brown liquid substance, then seconds later the plaintiff fell in that approximate area.

There was no one employee responsible for cleaning floors or inspection, but rather all employees were trained to be on the lookout.  There was no policy of regular cleaning although floors were cleaned at night after the restaurant closed.

Justice Henderson held that the Casino met its duty of care.  The liability analysis in occupier's liability cases is fact driven and varies from case to case.  It revolves around issues of whether the occupier had reasonable policies and procedures in place for the inspection and maintenance of the premises, and whether those policies and procedures were actually followed.  Although there was no evidence the policy was being followed, the evidence was the floor was clean so the policy was working reasonably well.

Slip and Fall Action Dismissed on Summary Judgment Motion

In Occupier's Liability cases, it is important to remember that occupiers are not insurers.

In Nandlal v. Toronto Transit Commission, 2014 ONSC 4760 (S.C.J.), the plaintiff alleged she fell on debris on the stairs in a subway station.  At her examination for discovery she testified she slipped on floor tiles.  She could not describe what she fell on and there were no witnesses.  A janitor was assigned to the station and followed a detailed schedule of regular maintenance and cleaning.

Justice Perell held that a plaintiff must pinpoint some act or omission on the part of the occupier that caused the plaintiff's injury.  The Occupier's Liability Act does not impose strict liability and the presence of a hazard does not lead inevitably to the conclusion that the occupier has breached its duty.  The occupier does not have to remove every possible danger; the standard of care is one of reasonableness, not perfection. 

Justice Perell allowed the TTC's summary judgment motion and dismissed the claim.  The plaintiff could not prove a hazard existed, and the evidence was that TTC took steps to make its premises as safe as in all the circumstances was reasonable.  He used a common sense approach:

[29]           It is important for a court to use common sense when applying the statute: (Canada) Attorney General v. Ranger, supra, at para. 34. Falls at bus terminals, airports, seaports, train stations, subway stations, occur without someone being responsible or with the responsibility resting with someone other than the occupier of the property. Falls occur on stairs found everywhere without anybody being responsible for what is just an accident. It is not reasonable or even practicable to impose an obligation on the TTC to be in a position to continuously and immediately cleanup after its patrons who litter the TTC premises including its staircases.  

Wisconsin's Best Lawyers in America©

I am extremely proud to announce that both Jeff Zirgibel and I were recently selected by our peers for inclusion in The Best Lawyers in America© 2015 in the field of Personal Injury Litigation - Plaintiffs.  Inclusion in Best Lawyers© is highly selective and "based on an exhaustive and rigorous peer-reviewed survey."

Wisconsin Personal Injury Lawyers

The Test for Catastrophic Impairment

A recent decision by the Divisional Court in Ontario provides a plaintiff-friendly interpretation of the test for catastrophic impairment under the SABS.

In Security National Insurance Co. v Hodges, 2014 ONSC 3627 (Div. Ct.), GCS scored administered within 30 minutes of the accident were 11.  He underwent surgery the day after the accident and scores fell to 3 while he was intubated, but rose to 10 once the trachea was removed. Roughly three days following the accident – and while still under the influence of medication – several GCS tests were administered and resulted in scores of 9.  MRI and CT scans done at the time suggested that, while Mr. Hodges had suffered a brain injury from the accident, the extent of the injury was quite limited. GCS tests administered over the following days showed continuing improvement and the final GCS test indicated no impairment in consciousness.

The insurer denied the plaintiff's application for catastrophic impairment.  The arbitrator found that the plaintiff met the test for catastrophic impairment and this finding was affirmed under appeal to FSCO.  The insurer appealed to the Divisional Court. 

In upholding the FSCO decision, the Divisional Court stated that what constitutes a reasonable period of time to conduct the GCS test should be determined on a case-by-case basis. It found that, in this case, the test was conducted within a reasonable period of time, given that the injured individual was still experiencing fluctuating levels of consciousness at the time of the test. The court rejected the argument that the GCS score had to have “prognostic value,” saying that this would turn the legal test for catastrophic impairment into a medical test. The court also rejected the argument that the statute required that the brain injury be the sole cause of the score of 9 or less, saying: “It is sufficient that the person claiming catastrophic impairment had any brain injury causing anyimpairment….”

It will be interesting to see if Hodges results in a greater number of applications for a CAT designation.  Of course, the claimant still needs to show entitlement to benefits even if successful.

Court Grants Summary Judgment Against Party Bringing Motion

Courts seem to be embracing the "culture shift" advocated by the Supreme Court in Hryniak.

In King Lofts Toronto I Ltd. v. Emmons, 2014 ONCA 215 (C.A.), the plaintiff sued for solicitor's negligence in connection with a commercial real estate transaction.  The defendants brought a summary judgment motion to dismiss the claim on the basis of an expired limitation period.  The motions judge dismissed the motion, but went a step further, granting summary judgment for the plaintiffs on the basis that the defendants had acted negligently.

The defendants appealed and the Court of Appeal dismissed the appeal.  It held that the evidence was clear that there was a duty to warn and the solicitor failed to do so.  The Court of Appeal held that "the principles of proportionality and sensible management of the court process support the judge's ruling". 

King Lofts shows a danger to bringing a summary judgment motion under the new Hryniak test.  Is this an unintended consequence of the new regime or in line with a goal of reducing the number of cases that need a full blown trial?