Know The Law In And Out

Know The Law In And Out

Know The Law In And Out: Developing The Right Game Plan To Keep Costs Down

Smith, Freed & Eberhard associate CJ Martin recently won an impressive Motion for Summary Judgment by way of a thorough analysis of the relevant case law that eliminated the need for costly discovery.

The Background Story

CJ’s client sold her house to the family of the Plaintiff in Clark County, Washington in 1996, at which time the Plaintiff was only four years old. Ten months after moving in the 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). CJ’s client agreed that she had promised to install the railing but that she did not arrange for it to be fixed until after his 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. Further, the Plaintiff 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 inaccessible to him on account of his seizure history rendering him unable to obtain scuba certification.

The Strategy

On the negligence claim CJ 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. On the contract claim, CJ argued that the agreement to fix the railing had to be in writing because it was for land sale. That didn’t work, however, when Plaintiff’s father claimed to remember a written agreement to that end that was 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, CJ 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, the 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 CJ’s motion for summary judgment was granted.

The Outcome

By undertaking a thorough analysis of relevant case law, and moving for summary judgment, CJ saved her client significant costs as she avoided the need to do any medical document discovery, hire any medical experts, do any depositions, hire any safety/construction/deck experts, or even go out to the house. CJ won on the law alone, achieving a quick and economical dismissal for her very appreciative client.