Harry Stump, Esq.

Category: Premises Liability

  • DOES WEARING A COVID-19 FACEMASK INCREASE THE RISK OF INJURY?

    COVID-19 facemasks, while limiting the spread of the virus, also limited the peripheral vision of the wearer.  On or about March 19, 2020, there was a nearly national COVID-19 lockdown. A facemask was widely required for appearing in public.

    There is recognition in the medical literature that COVID-19 related mouth-nose masks restrict the visual field, even in persons with normal vision.  While the governmental requirement to wear facemasks has relaxed, there remains the possibility of future waves of virus and future requirements of facemask use when in public.  Some persons continue to wear a mask in pubic for protection.  Many health care facilities continue to require the use of facemasks to enter their premises.  Therefore, it is important to understand the effect of facemasks on vision and prevent or reduce the hazards created by them.

    Do facemasks affect healthy vision?  Is there a defined standard of facemask?  Do facemasks vary by size and shape?  Do different types of facemasks affect the visual field?  Does the position of the facemask on the face matter?  Is a nose clip on a facemask important?  What part of the visual field is affected by the wearing of a facemask?  Is the lower peripheral field of vision important for detecting and avoiding nearby hazards?  Does wearing a facemask obscure what otherwise might be considered an open and obvious hazard?  Should one wear a facemask while driving?  These are some of the issues raised and answered in the medical literature.

    In Navigating Through a COVID-19 World: Avoiding Obstacles. Klatt and Anson, J. Neurol Phys Ther. 2021, Jan: 45, this University of Pittsburgh-related article states that:

    The lower visual field is particularly important for obstacle avoidance and grocery shopping; individuals may don their mask before getting out of the car.      Thus, seeing the curb or potholes may be more challenging because of the mask while navigating across the parking lot into the store…. some masks block the lower visual field more than others…

    Their research found that some masks impair the lower visual field more than others but did not identify an “optimal” face covering.  They tested a bandana, a homemade facemask and a N95 face mask.  Their conclusion was the N95 mask wearer lost approximately an additional 3 feet of vision to observe obstacles the wearer approached.

    In Face masks, vision, and risk of falls, Kal, Young, Elmers, British Medical Journal, 2020; 371 :m4133 find that:

    “…face masks invariably block parts of the lower peripheral visual field…visual information from the lower peripheral field is important for detecting and avoiding nearby hazards, and for placing our steps safely.  Wearing a face mask reduces the wearer’s opportunity to use this important sensor information during walking and may therefore increase the chance of tripping or falling.”

    In Facemasks block lower visual field in Youth Ice Hockey; Critelli, Deminis, et. al., Frontiers in Sports and Active Living, December 2021.22, discuss:

    Wearing a facemask significantly restricts the lower field of view in youth hockey players significantly reducing the player’s ability to visualize the puck.

    In Mouth-nose masks impair the visual field of health eyes, Weber, Hohberger, et. al.  PLOS ONE, May 2021, found that visual field function was significantly impaired in the inferior-nasal sector when wearing a mouth-nose mask.  The article focused on the different types of masks used, the presence or absence of a nose clip and whether the nose clip was correctly used.  Home-made masks do not usually have a nose clip.  Failure to use a nose clip, or using one in the wrong way, were found to adversely affect the visual field.  The face mask is identified as an additional visual field artifact in the lower peripheral field.  Other visual artifacts include ocular diseases such as glaucoma.

    Many ocular and neurological diseases impair visual field.  Their visual field will be even more restricted, if these patients do wear a mask in the wrong way or wear a mask that cannot be worn closely to the nose.  An enhanced visual field loss can result in a higher risk of falling.  Incidents like falling might increase morbidity and mortality especially in elderly person…A study with young and healthy participants showed an increasing number of pedestrian collisions after constricting the participant’s visual field.  Using compensatory mechanisms (e.g. eye movements) reduced these pedestrian collisions, yet the number of collisions was still significantly increased compared to without restriction of visual field.

    The article warns against the increased risk of falling and also advises against wearing a face mask while driving:

    Therefore, wearing a mask while driving a car might be a reason for preventable accidents, even if the driver is young and healthy and uses compensatory mechanisms.

    Brick and mortar stores, among others, remained open during the face-mask requirement period as essential businesses, but, pursuant to the mask mandate, permitted access to only those persons wearing a mouth–nose mask cover.

    The medical literature indicates that wearing the COVID-19 facemask restricts the peripheral vision of the customer and causes increased falls and injuries to shoppers and other pedestrians.

    Because approximately 60% of in-store purchases are thought to be unplanned, current brick and mortar store interiors are designed to attract the attention of shoppers in order to generate sales.  Overstocked products, various displays, end caps and other attractions are designed to capture the customer’s attention.  Shoppers in a crowded store do not travel in lanes, but seem to zigzag through the aisles requiring one’s attention to avoid collisions.  A shopper’s vision is understandably divided.  Walking with one’s lower peripheral vision blocked by the COVID-19 face mask in this environment can obscure a waiting hazard.

    Would wearing a face mask be an effective answer to the open and obvious defense used against injured victims?   In the modern brick and mortar store, the owners or management of the premises should expect that a customer will not discover or realize the danger of hazards on the walkway, or will fail to protect themselves against it. This is especially true when the victim is wearing a facemask.

    “Tripping Hazards Absent” is an entry found on every Store Safety Checklist.  The National Safety Council Data Sheet I_495-Reaf 86 states that:

    1. Tripping hazards constitute one kind of unsafe condition that causes falls. Examples are merchandise left in aisles, extension cords lying across paths of travel, display, platforms, or merchandise racks protruding into traffic lanes…

    It is submitted that the prevalence of facemask wearing requires a higher degree of vigilance to eliminate tripping hazards by management of brick and mortar establishments open to the public.

    In conclusion, the current medical literature indicates that wearing the COVID-19 facemask can lead to more falling and tripping accidents while on foot and more motor vehicle accidents when the driver is wearing a facemask.  This is due to the unexpected loss of the lower peripheral vision of the wearer.

    As the wearing of facemasks may become a more common occurrence, especially for the more vulnerable parts of the population, as with any of the medical literature, FRIN (further research is needed) regarding this particular visual artifact.

     

     

     

  • PRODUCTION OF SECURITY ACCIDENT SCENE VIDEO WITHOUT DELAY

    Attached is a Memorandum of Law that I recently submitted in a slip and fall case in an attempt to secure the security video evidence of the fall before my client’s deposition.  The defense argued that it should not be produced prior to the plaintiff’s deposition because of its impeachment value.  The court focused on the word “solely” in Rule 26 and ordered the production before the plaintiff’s deposition.

     

    UNITED STATES DISTRICT COURT

    FOR THE WESTERN DISTRICT OF PENNSYLVANIA

     

    JAMIE E. MASSUNG,

    Plaintiff,

    vs.

    DOLGENCORP, LLC t/d/b/a DOLLAR GENERAL and DOLLAR GENERAL,

    Defendants.

    CASE NO. 2:19-CV-01081-PLD

    PLAINTIFF’S MEMORANDUM IN SUPPORT OF PRODUCTION OF SECURITY ACCIDENT SCENE VIDEO WITHOUT DELAY

    Plaintiff slipped and fell in the direct view of a Dollar General Security video camera.  Plaintiff seeks the production of the entirety of that day’s video of the accident scene prior to and after the slip and fall of the plaintiff.  Defendant has stated that it will defer the production of this video until after the deposition of plaintiff.  Plaintiff needs the security video to aid in the establishment of liability and to prepare for a scheduled mediation conference.  Delay of production of the video will result in less than a two week window between the December 4, 2019 deposition of plaintiff and the scheduled mediation on December 18, 2019.  Plaintiff contends that there is a difference between the instant security video and a post-accident surveillance video.

    Rule 26. Duty to Disclose; General Provisions Governing Discovery provides as follows:

    (a) Required Disclosures.

    (1) Initial Disclosure.

    (A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:

    (ii) a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;

    The Third Circuit has not reviewed this issue.  Viola v. Costco Wholesale Corporation, No. 18-cv-4661 (E.D. Pa. 2019) ordered the production of the security

    video: “the entirety of the video footage Defendants have in their possession which allegedly records the events on the day plaintiff…fell inside Defendants’ store within seven (7) days of the date of this Order.  Only thereafter may Plaintiffs’ depositions be taken.”  (Order attached hereto.)

    Mulero v. Walsh, No. 3:15-CV-1406 (M.D. Pa. 2018) held that it was error for the defendant not to disclose a surveillance video pursuant to Rule 26.

    In Williams v. D.P. Fence-North, LLC, No. S=1344-10 (Schuykill County 2011) illustrates that a Pennsylvania Common Pleas court held that a security video tape was not a surveillance tape made in anticipation of litigation and acts as an eyewitness to the event which must be produced before any depositions take place. (Opinion attached hereto.)

    The two Circuit courts that have ruled on this issue focus on the meaning of the word “solely.”   In Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513 (5th Cir. 1993), the court held that a post-accident surveillance tape was discoverable because it contained both substantive evidence and impeachment evidence.  The court defined substantive evidence as that offered to establish the truth of a matter as opposed to impeachment evidence designed to discredit a witness.  Klonoski v. Mahlab, 156 F.3d 255 (1st Cir. 1998), cited Chiasson in characterizing letters kept for impeachment as both substantive and impeachment evidence, therefore discoverable under Rule 26.

    In Mulero v. Walsh, No. 3:15-CV-1406 (M.D. Pa. 2018), that court reviewed the issue with respect to a security video taken at the scene of an arrest.  That court noted that Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513 (5th Cir. 1993) had ruled that even in a secret video taken for post-accident injury evaluation that the term “solely” in Rule 26 was limited to evidence that has no potential utility other than impeachment; if the video had substantive value, it must be produced.

    The relevant excerpt from Mulero:

    (2) Exclusion of the Surveillance Video:

    Next, Defendant Sheposh argues he is owed a new trial because I erroneously prohibited admission of a surveillance video.  Federal Rule of Civil Procedure 26 requires the disclosure of certain information at the start of discovery. Specifically, this Rule requires parties to disclose, without request, “a copy—or a description by category and location of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody or control and may use to support its claims or defenses, unless the use would be solely for impeachment.” FED. R. CIV. P. 26(a)(1)(A)(ii). This disclosure must occur within fourteen (14) days following the parties case management conference. FED. R. CIV. P. 26(a)(1)(C). The Rules explicitly provide for sanctions if the mandates of Rule 26 are ignored. FED. R. CIV. P. 37(c)(1). “If a party fails to provide information or identify a witness as required by Rule 26(a) . . . the party is not allowed to use the information or witness to supply evidence on a motion, at a hearing, or at a trial, Mulero v. Walsh, No. 3:15-CV-1406 (M.D. Pa. 2018) unless the failure was substantially justified or is harmless.” Id.  The burden of establishing that a failure to disclose was either substantially justified or harmless rests on the party facing a request for exclusion. See R.C. Olmstead, Inc. v. CU Interface, LLC, 606 F.3d 262 (6th Cir. 2010); Tolerico v. Home Depot, 205 F.R.D. 169, 175 (M.D. Pa 2002) (Vanaskie, J.).

    Notably, information used “solely for impeachment need not be disclosed pursuant to Rule 26(a)(1)(A), (C).[10] But, this exception to the broad rule favoring disclosure is quite limited. In fact, a number of courts have held that the impeachment exception is limited to evidence that has no potential utility other than impeachment. See, e.g., Standley v. Edmonds-Leach, 783 F.3d 1276, 1283 (5th Cir. 2015) (explaining that the term “solely” modifying the word “impeachment” is to be interpreted strictly); Chiasson, 988 F.2d at 517-18 (holding that a video tape, “regardless of its impeachment value,” must be disclosed because it is a the very least partially substantive); Klonoski v. Mahlab, 156 F.3d 255, 270 (1st Cir. 1998) (same).

    Defendants were required by Rule 26(a) to produce the surveillance video within 14 days of the case management conference. The parties participated in a Rule 26(f) case management conference on April 14, 2016. (Docs. 13, 17.) This means that disclosures required by Rule 26(a) were to be provided to opposing counsel no later than April 28, 2016. On August 18, 2017-the day of the final pre-trial conference-Defendants provided Plaintiff with a surveillance video that purported to document the events giving rise to the instant dispute. I decided, like the majority of courts confronted with this issue, that the video was both substantive and impeaching in nature.[11] Thus, the video should have been produced by the end of April 2016. Because Defendant failed to comply with the mandates of Rule 26(a),

    Defendant was sanctioned in accord with Rule 37(c)(1): I prohibited the use of the video at trial for substantive and impeachment purposes.

    Defendant relies upon Snead v. Am. Export-Isbrandsen Line, 59 F.R.D. 148 (E.D Pa. 1973), Machi v. Metro. Life. Ins. Co., No. 07-1754, 2008 WL 2412947, at *1-2 (W.D. Pa. June 10, 2008, and Delacruz v. Walmart Store 5103, Walmart Associates, Inc., No. 10-5932 (E.D. Pa) cases.

    It is important to note the distinction between a security video recording of an accident scene and a surreptitious/secret surveillance video recording of a plaintiff performing physical acts inconsistent with their claims of injury.  The accident scene security video has predominantly substantive value as evidence of the underlying facts surrounding this accident.  The secret surveillance video of inconsistent claimed disabilities, restrictions and limitations are limited in use by the defendant solely for impeachment.

    Both Snead and Machi, supra. involved the secret types of videos created solely for impeachment purposes, or surveillance videos,  and have a plausible argument that they were created solely for the impeachment purpose of disputing a claim of disability and did not contain substantive evidence.  Delacruz, supra., involved an accident scene security video as does the instant case.  That court cited Snead and Machi, without discussing the security video v. surveillance video difference of  the two videos or why it did not feel compelled to follow Rule 26 (a) (1) (A) (ii).  As noted above, the same Eastern District court reached an opposite and more recent decision, compelling production of the security video in Viola v. Costco Wholesale Corporation.

    As noted above, Rule 26 compels production of this video as it does statements of eye witnesses and other evidence that plaintiff could use for trial.  The primary value of this video is to ascertain substantive evidence exists to prove facts relevant to liability of defendant.  The video is relevant to proof of facts surrounding the incident at issue in this case.  Denial of production will only serve to delay and limit plaintiff’s preparation of this case and impair the value of the scheduled mediation.

     

     

  • STAIR-RELATED INJURIES

    Stairs can be dangerous especially for the very young and senior citizens.  The consequences of a fall from the top of the steps to a story lower can be devastating.  Even a fall at the bottom of the steps can cause a serious injury.

    According to the April, 2018 American Journal of Emergency Medicine, over 1 million patients are treated in United States Emergency Rooms for stair-related falls each year.  According to the National Safety Council’s Injury Facts, falls are the third leading cause of preventable deaths and the first leading cause of preventable nonfatal injuries in the United States.

    The noted authority, John Templer, in The Staircase, Studies of Hazards, Falls and Safer Design, identifies falls on stairs, as they are designed and built, as some of the most dangerous artifacts in our environment. On page 15 of the book, he identifies Stair Maintenance (ice, snow, water, other substances on treats; articles left on stairs; broken tread; loose or torn carpet or covering; tread badly eroded; light broken or not switched on; loose nosing strip; and absent or broken handrail) and Stair Design and Construction (a single step; narrow treads; dimensional irregularity; inadequate illumination; risers that are too high or low; a step or stair in an unexpected place; no handrails; nosing strip that projects above the treat; slippery tread material; distracting views; and confusing patterns on the tread) as some of the most important factors that cause stair falls.

    One case involved a temporary set of steps in a shopping mall.  Measurement of the risers of the steps indicated that they varied in height from the bottom of the steps as follows:  5 3/4 inches; 5 3/4 inches; 5 3/4 inches; 5 inches; and 7 inches.  A person climbing these stairs would encounter three successive steps with a uniform riser, then a fourth step with a  lower riser, then a fifth step with an additional  2 inch higher riser.  An injury resulted.  The applicable building codes require riser height and tread width to be uniform throughout any flight of stairs. 

    Another case involved what appeared to be homemade outdoor steps.  The following defects were noted:  there was no handrail; the porch carpet was torn near the steps; the carpet did not extend to the edge of the steps by ½ inch; the top thread was severely warped and rose upward in the rear of the step, creating a ski slope effect, especially dangerous if snow or ice was present; the top horizontal board on the porch did not extend to the edge of the porch, creating a ½ inch mini-riser at the top of the steps.  Counting the mini-riser, the risers descending were ½ inch; 6 inches; 6 7/8 inches.  Counting the mini-tread, the treads descending are: ½ inch; 11 inches; 11 1/3 inches; and 11 ½ inches.  The carpet on the porch combined with no slip-resistance on the steps created a slipping hazard because of the change in the coefficient of friction.

    Commonly encountered trip hazards include a single step riser. Such trip hazards should be eliminated to provide an unobstructed surface or sufficiently highlighted to attract the pedestrian’s attention.  The unexpected and unmarked single step is a known tripping hazard. These steps may not be clearly seen because of placement, poor lighting or a visual merge with the extended walkway.  One banquet facility had a single step near to the exit.  The same carpet covered the entire floor, both before and after the single step. There were no obvious visual clues.  Some codes prohibit less than three steps.  Some single steps are obvious and clearly marked at the tread edge with noticeable warning markings.  The single step is unexpected except in parking lots and at curbs.