The Loud Racket

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Q: In the building where my husband worked, the owner entered into a contract for some demolition work.  In performing its obligations, the contractor made a terrible racket.  George must have lost his hearing, which had always been fine.  He was always a cautious person.  While exiting the building, George failed to hear a fire engine.  The rest is in the papers.

A: Your theory of liability is relatively simple.  As for the owner, a landowner owes a duty of care to maintain his or her property in a reasonably safe condition.  That duty is premised on the landowner’s exercise of control over the property – because the person in possession and control of property is best able to identify and prevent any harm to others.  As for the contractor, it launched a force or instrument of harm. 

The battle comes on causation.  When a victim is alive, the sooner after the incident he is examined by a physician, the better.  With a reasonable degree of medical certainty, the physician can then give an opinion that there was a drastic loss of hearing and that it was caused by some recent loud acoustical event.

In this case, I assume the autopsy report says nothing about your husband’s hearing, let alone the causation of any diminution in his hearing.  The defendants will insist that you are just speculating.

Perhaps you can find other occupants of the building who will back you up: that they lost hearing, too.  Or perhaps you can show that the contractor had been cited for excessive noise in the past, or that its machinery was presently defective.  Granted, all this is merely circumstantial evidence, but our courts have often held that circumstantial evidence can be sufficient to support an inference of causation or negligence.

A plaintiff is not required to negate the existence of remote possibilities that the injury was not caused by the defendant or that the defendant was not negligent.  It is enough that you show circumstances from which the negligence and the causation may be reasonably inferred.  Then the jury has the option of finding for you, when under all the circumstances the probability that the defendants are fault-free is slight.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

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