Tuesday, June 23, 2009

The Dangers Of Mediation

A mediation conducted by a mediator employed by the Federal Mediation and Conciliation Service at the Hampton Inn in Beckley, West Virginia was abruptly interrupted when a 33 pound light fixture fell on the mediator's head, causing serious injuries. The mediator thereafter sued for his injuries. A majority of the West Virginia Supreme Court of Appeals affirmed the grant of summary judgment on behalf of the defendant, Equity Inns.

A dissent would conclude that the summary judgment was improperly granted:

 In the situation at hand, on the day in question, Mr. Crum [the mediator] entered the conference room of the hotel to conduct mediation in a civil lawsuit. Then, through no fault of his own, a thirty-three pound light fixture fell on his head. Although a very sketchy expert opinion was rendered concluding that Equity Inns was without fault, the appellant never had a meaningful opportunity to conduct discovery of this expert and refute this opinion. Even if the Guffey [expert] opinion letter was determined to constitute a prima facie showing of the defendant having met its affirmative duty to the plaintiff, the appellant should have been able to pursue further discovery on the alleged negligent maintenance of the hotel and what duties and obligations, if any, were assumed by Equity Inns when it purchased the hotel. It is my belief that the better view would be for strict liability to be imposed upon an innkeeper for personal injury to a guest who is without fault. If that is not the majority view, the least they could have done was to clarify or modify existing law to their liking. The majority does absolutely nothing to enunciate existing law, nor to modify or clarify it. The majority leaves the law even murkier than it has been for the last sixty-two years, since this Court issued the opinion of Lilly.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2009/06/the-dangers-of-mediation.html

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