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Rick Shapiro
Rick Shapiro
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Slip, Trip or Fall cases: When Is A Hole Or a Condition Causing Personal Injury Open and Obvious?

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I wrote a full article about a recent federal court decision out of Richmond, Virginia (within the Federal court circuit over West Virginia (WV), Virginia (VA), North Carolina (NC) and South Carolina (SC)) where the federal judge denied a motion to dismiss a delivery driver’s personal injury lawsuit against a Firestone Tire store, resulting from his injury when he tripped in a parking lot pothole. In a case called Cring v. BFS Retail and Commercial Operations LLC, the opinion by Judge Payne outlined the fact that under Virginia law courts are permitted to find contributory negligence on behalf of the injured victim when the hazard or condition was open and obvious, and with ordinary care, the condition/hole could have or should have been avoided by the injured person. The conservative Federal judge next addressed whether the injured delivery driver could be held negligent for simply failing to look down at the moment before tripping into a pothole. The federal judge observed that the Virginia Supreme Court stated that a jury must examine the size, location and visibility of defects or conditions to determine whether they are truly open and obvious to a personal injury victim. The Judge ultimately would not dismiss the suit and for a full article discussing this decision click here.