Plaintiff was a 47 year old Captain for a commercial airline who piloted a 737 to a Virginia international airport on June 30, 2005.Before piloting a similar jet on the next morning of July 1, 2005 outbound, pilot and the crew stayed at the Virginia hotel routinely used by the airline crews.The pilot was in excellent health and had recently passed a thorough FAA physical examination, less than six weeks earlier.
On the morning of July 1, 2005, the pilot was taking a shower in his hotel room and while washing his hair with his hands directly above his head, when he received an electrical shock which essentially froze him in the shower.After some period of receiving the shock, with his hands still frozen above his head, pilot lost consciousness and fell out of the shower, suffering some contusions.Pilot testified that his heart was racing and was measured at 180 beats per minute following the shock.He was very shaky and had cobwebs upon regaining consciousness.He immediately called the hotel operator to report that he had been electrocuted in the shower.The hotel dispatched a maintenance engineer to the room, who, after observing the light fixture above the shower told the pilot that the fixture doesnt belong in that environment, and promptly called the front desk and shut down the room due to electrical problems. Pilot described the light fixture as an uncovered bulb in a ceramic based fixture that was flush mounted to the ceiling above the shower, protruding downwards.The hotel engineer disagreed, testifying it was a recessed can light fixture, only admitting that the flat plastic lens covers was missing, exposing the bulb to shower spray.He also admitted that the hotel had been having problems for the prior 2-3 months with the plastic covers of these light fixtures falling off and not having spare recessed light plastic covers available. The pilot notified management that he could not safely pilot the jet that morning, and rode in the jets jump seat.During the flight, he began experiencing difficulty with his left eye.He initially thought his sunglasses were smudged and indicated it was like looking through wax paper.He subsequently developed a left occipital headache.Numerous physicians subsequently confirmed that pilot suffered from left optic neuropathy, and although his vision was 20/20 in both eyes when tested for his FAA examination on May 17, 2005, his vision deteriorated immediately after the shock injury to 20/60 to 20/80 range in his left eye.When the jet landed on July 1, 2005, pilot went to the local emergency and his documented complaints at that time included dizziness, numbness and tingling in his extremities, headaches and decreased left vision.He subsequently developed issues with fatigue and with balance and coordination.His immediate lack of visual acuity caused him to fail a mandatoryFAA physical and he is no longer qualified to pilot any commercial aircraft.His physicians testified that his injuries were permanent.
Plaintiffs suit, removed by defendant hotel to federal district court, contended that the hotel negligently, knowingly left an open light fixture directly over the area where hotel guests would be showering and spraying water in violation of the National Electric Code (NEC), which has been adopted by the state of Virginia.Also, pilot filed an extensive memorandum of law before the final pretrial hearing asserting that the electrical shock evidence presented a classic res ipsa loquitor case allowing an inference of negligence against the hotel, and additionally arguing that the hotel wrongly failed to document or retain the electrical fixture, as no pictures or written inspection report were ever produced until over a month later-and pilot contended the fixture had been altered in the meantime. Pilot listed over 10 experts, including neuro-opthamologists, neurologists, electrical experts, vocational and economic experts, the latter experts calculating earning capacity of around $250,000 annual salary, leaving over three million dollars gross lost earning capacity.The hotel denied any negligence, denied that the pilot suffered any electrical shock, and claimed the pilots symptoms were magnified or caused by pre-existing conditions, and also listed a wide array of medical and liability defense experts.As the pilots counsel, we retained a leading electrical shock electrician/physician from Australia, and a Virginia based electrician expert to analyze the circumstances of the unusual shock injury.One of the experts opined that barely grazing the light bulb with the arm could cause a very significant electrical shock, especially standing in water.
Hotel/Innkeeper Liablity Issues
Pilot asserted that subsequent to the filing of his suit, the Virginia Supreme court clarified that hotels are held to high standard of care applicable to common carriers, in the case of Taboada v. Daily Seven, Inc., 626 S.E.2d 428 (Va. 2006).In Toboada, the court stated:
We have held that neither the innkeeper nor the common carrier is an absolute insurer of the guest’s or the passenger’s personal safety. See, e.g., Crosswhite, 182 Va. at 716, 30 S.E.2d at 674 (innkeeper); Norfolk & Western, 105 Va. at 821, 54 S.E. at 883 (common carrier). Nonetheless, we have held that the duty of care imposed on common carriers is an elevated duty that requires them ” `so far as human care and foresight can provide . . . to use the utmost care and diligence of very cautious persons; and they will be held liable for the slightest negligence which human care, skill and foresight could have foreseen and guarded against.Given the nature of the special relationship between an innkeeper and a guest, we hold that it imposes on the innkeeper the same potential elevated duty of “utmost care and diligence” [as applies to common carriers].
Taboada v. Daly Seven, Inc., 626 S.E.2d 428, 434 (Va.2006)(emphasis supplied).Pilot asserted that the statements of the hotels maintenance engineer alone were proof that the hotel did not exercise its elevated duty of care to provide for a safe shower light fixture.
Res Ipsa Loquitor Evidence
While pilots electrical experts offered the theory that his shock occurred when his hand slightly grazed an exposed shower light bulb, pilot also argued for a res ipsa jury instruction which would supply an inference of hotel negligence from the circumstances alone.Res Ipsa is applicable to a narrow set of circumstances, and as outlined by the Virginia Supreme Court:
In order for the doctrine to apply in a given case, the instrument causing the injury must have been in the exclusive possession of the defendant, and the occurrence must have been of such a nature that it can be said with reasonable certainty that the accident would not have occurred in the absence of negligence on the part of the defendant. It must be further shown that the evidence of the cause of the accident is accessible to the defendant and inaccessible to the injured party.
Stein v. Powell, 124 S.E.2d 889, 203 Va. 423, 426 (Va., 1962) (denying application where child injured by shattered mirror accessible to other invitees).
Pilot contended at the final pretrial hearing that his electrical shock injury was a classic res ipsa circumstance, and cited a number of analogous decisions:Cases involving injuries inflicted by steam, electricity, fire, gas, complicated industrial machinery, and other dangerous instrumentalities furnish the clearest instances of the use of the doctrine of res ipsa loquitur. Robison v. Cascade, 72 P. 3d 244 (Wash. App. 2003)(emphasis supplied) (applying res ipsa in electrical shock case involving a truck trailer loader); Kieffer v. Weston Land, Inc., 90 F. 3d 1496 (10th Cir. 1996) ( applying res ipsa in electrical shock case involving vending machine).Pilot noted that thousands upon thousands of hotel guests take showers in hotels daily, and it cannot be disputed that serious personal injury or death caused by electrical shock should never occur while a hotel guest is routinely shampooing their hair in a hotel shower.The pilot checked into his hotel room, discovered no apparent problem with the electrical system or the electrical power.Prior to turning over the hotel room to the pilot, the hotels cleaning personnel were the last persons to have access to the room and to have inspected it.There was never any suggestion by the hotel of a third-party tampering with the electrical source, or a third-party or the pilot tampering with the fixture over the shower, and supplying the overall electrical power supply is exclusively within the hotels control.The court made no ruling or finding on res ipsa loquitor at the final pretrial hearing, given that offering such an instruction would be dependent on the evidence admitted later at trial.
Missing Evidence Inferences
The hotel attacked the pilots electrical experts theories, and moved to exclude the expert opinions as unreliable and suspect, given that the pilots two experts did not conduct tests on what the pilot contended was the same light fixture, or under reliable similar circumstances.Pilot, in response, argued that the hotel completely failed to preserve or maintain the main, known material evidence (the light fixture, whether in the ceiling area or preserved with the entire fixture and its wiring apparatus).This is so despite its awareness from the very first hour after the incident that the pilot was shocked in their shower.The hotel admitted that the room remained out of use for well over a month, but it produced no pictures, inspection reports, or confirmation of what if anything was done to alter the fixture in the first days or weeks.The hotel contended no changes were made, but when pilots expert was permitted an inspection months later, pilot contended the fixture was entirely different.
Pilot argued that the limitations or less than ideal expert electrical evidence foundation was due to hotels failure to preserve relevant evidence, and pilot should not be penalized.Pilot cited to a similar circumstance which arose in an electrical shock case involving a bakery company employee who claimed electrical shock from a vending machine. Kieffer v. Weston Land, Inc & Coca-Cola, 90 F. 3d 1496 (10th Cir. 1996).Employees of the defendant claimed they checked the vending machine the same day and that neither relevant machine had any electric current flowing that could cause a shock. Id. at 1498. The defendant in Kieffer initially discarded the subject vending machine, then relocated it, but it did not have the electrical cord any longer and therefore was in a different condition. Id. at 1499.In the similar Kieffer case, defendants asserted the claim that the plaintiffs electrical expert opinions were lacking and unreliable, but the court in Kieffer stated:[o]bviously, had the plug not been removed from the machine, Dr. Oliver’s [electrical expert] conclusions regarding the likelihood of shock in relation to a defective plug would have been either far more certain or possibly even unnecessary. The fact remains, however, that the missing evidence which created the need for the testimony which [defendant] now finds objectionable was caused by [defendant] itself.Defendant argues that the loss of evidence by a party does not allow a negative inference against that party unless it is shown that it acted in bad faith, citing Mason v. E.L. Murphy Trucking Co., Inc., 769 F.Supp. 341, 345 (D.Kan.1991) and Lewy v. Remington Arms Co., Inc., 836 F.2d 1104 (8th Cir.1988). Plaintiff was entitled to produce the relevant evidence that defendant removed the machine a few days after the incident and that when defendant produced it over a year later the plug was gone. Defendant offered an explanation for the missing plug, suggesting it was caught in the truck bed when the machine was taken to the dump, but the jury had the right to reject that explanation.
The evidence provided a factual basis for Oliver’s [electrical expert] testimony about how an electric shock might have occurred. The district court correctly ruled that the jury was free to accept or reject the expert’s opinion in deciding, based on the proof provided by plaintiff, whether defendant’s Seven-Up machine was the source of his injury..
The pilot also pointed to the Fourth Circuit decision in Silvestri v. Gen. Motors Corp., 271 F. 3d 583 (4th Cir. 2001) where the plaintiff failed to preserve the vehicle that was the basis of a product liability claim against GM.The Fourth Circuit there stated:
In the case before us, the conduct of the spoliator may have been either deliberate or negligent. We know that Silvestri’s attorney knew that the vehicle was the central piece of evidence in his case against General Motors and that he had been reminded that this piece of evidence should be preserved or that General Motors should be notified. As it turned out, the vehicle was not preserved, and neither Silvestri nor his attorneys notified General Motors of Silvestri’s claim until almost three years after the accident; by then, the evidence had been destroyed by the repair of the vehicle.
Id. at 593-594. In Silvestri, the 4th Circuit affirmed the harsh sanction of dismissal of the claim, and discussed lesser sanctions. Id.Pilot asserted that courts have a wide range of inherent powers to assure that the courtroom is not a forum to restrict the search for truth–well short of dismissing a claim or defense, and allowing pilots electrical experts to offer their electrical theories, supported by pilots testimony, was proper, and defendants motions to exclude should be denied.After hearing all the arguments, the District Court denied the hotels motions to exclude pilots electrical experts, and refused to dismiss the NEC negligence per se count of the complaint, but made no pretrial ruling on the impact of any missing evidence.
Judicial Settlement Conferences
The court ordered two settlement conferences:the parties were unable to settle the case prior to the final pretrial hearing, but at the second settlement conference, after the pretrial hearing decisions and about a week before trial, the parties settled the case for 1.5 million dollars, in exchange for full and complete settlement of all claims.
Plaintiff’s Primerus Virginia Counsel:
Richard N. Shapiro, Esq.
Shapiro, Cooper, Lewis & Appleton, PC
Virginia Beach, VA