Electrical Shock Injury In Hotel Shower Ends Commercial Pilot's Career--Settlement Just Before Trial
By: Richard N. Shapiro, Shapiro, Cooper, Lewis & Appleton, P.C., Va. Beach, VA
Our Plaintiff client was a 47 year old pilot/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. The next morning, our client 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 a serious electrical shock which 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." 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 jet's 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 mandatory FAA physical and he is no longer qualified to pilot any commercial aircraft. His physician's testified that his injuries were permanent.
Plaintiff's suit 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 prior to 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. In the suit, we named 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 in lost earning capacity. The hotel denied any negligence, denied that the pilot suffered any electrical shock, and claimed the pilot's symptoms were magnified or caused by pre-existing conditions, and also listed a wide array of medical and liability defense experts.
Hotel/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].
Taboada v. Daly Seven, Inc., 626 S.E.2d 428, 434 Va.2006) (emphasis supplied). 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 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 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 court 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 hotel's cleaning personnel were the last persons to have access to the room and to have i
