Case Description: A commercial pilot who was permanentyl disabled by an electrical shock injury suffered in a Virginia hotel room received $1.5 million in a settlement with the hotel's owner.
Staff:: Richard N. Shapiro, Personal Injury Attorney; Meg Cudden, Legal Assistant
Location and Date: Virginia, 2005-2008
What Happened: Our client was a 47-year-old pilot/captain for a major commercial airline who piloted a 737 to a Virginia airport on June 30, 2005. Before piloting a similar jet on the next morning of July 1, 2005, the pilot and the crew stayed at the Virginia hotel routinely used by the airline crews. The pilot was in good health and had passed an FAA physical examination less than six weeks earlier.
The next morning, our client was taking a shower in his hotel room and washing his hair with his hands directly above his head, when he received a serious electrical shock that, essentially, froze him in the shower. With his hands still frozen above his head, he lost consciousness and fell out of the shower, suffering some contusions. He testified that his heart was racing and was measured at 180 beats per minute following the shock. 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 "doesn't belong in that environment," and promptly called the front desk and shut down the room due to "electrical problems."
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Key Legal Strategies
Hotel and Innkeeper Liablity
In the year after we filed suit for our client, 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. ... 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].
The pilot asserted that the statements of the hotel's 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 the pilot's 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 loquitor jury instruction which would supply an inference of hotel negligence from the circumstances alone. Res Ipsa loquitor 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
Missing Evidence Inferences
The hotel attacked the pilot's electrical expert's theories, and moved to exclude the expert opinions as unreliable and suspect, given that the pilot's two experts did not conduct tests on what the pilot contended was the same light fixture, or under reliable similar circumstances.The pilot, in response, argued that the hotel completely failed to preserve or maintain the main, known material evidence (i.e., 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 the pilot's expert was permitted an inspection months later, the pilot contended the fixture was entirely different.
The pilot argued that the limitations or less than ideal expert electrical evidence foundation was due to hotel's failure to preserve relevant evidence, and pilot should not be penalized. The 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.
The Result: The court ordered two settlement conferences. At first, the parties were unable to settle the case prior to the final pretrial hearing. But in the second settlement conference, after the pretrial hearing decisions and about a week before trial, the parties settled the case for $1.5 million in exchange for full and complete settlement of all claims.
As the pilot's lawyers, we found that the judge at the final pretrial hearings apparently agreed with our arguments that no hotel guest should suffer an electrical shock in a hotel shower, whether a pilot or anyone else. At that hearing, one of the hotel's lawyers explained to the judge that one of the hotel's defenses was that the pilot may have never suffered any shock. The judge asked him whether he thought it might have been a bolt of lightning instead!
The judge later refused to exclude any of our electrical expert opinions, and subsequently the case was settled with assistance of a magistrate judge at the second settlement conference, for a sum of money that compensated our pilot client for a significant amount of lost earnings that would cover, for a decade at least, his significant lost earnings and assist his family by providing financial security for the foreseeable future despite his lost career.
Awarded: $1.5 million to the plaintiff