Attorneys obtained a defense verdict in a legal malpractice action

Attorneys obtained a defense verdict in a legal malpractice action arising out of an underlying plaintiff's personal injury action whereby wife-plaintiff had fallen into a 7' deep open pit at her workplace which had been dug by a mason to accommodate a metal press, thereby sustaining serious injuries. The attorney-defendant, our client, had timely filed the underlying action but erroneously named the son by the same name (Junior) instead of the proper party (Senior) who had dug and allegedly failed to secure the pit. The attorney was unable to later amend the caption and serve the proper party due to the running of the statute of limitations, resulting in dismissal of the underlying action. In the legal malpractice trial, negligence of the attorney-defendant was conceded and the case tried solely upon plaintiff's ability to prove that she would have recovered in her underlying personal injury lawsuit had the proper party been named at case inception. We successfully proved that plaintiff was 75% comparatively negligent in the accident, thus precluding recovery on her underlying claims as well as her legal malpractice theories as part of her case-within-a-case proof burden. In doing so, we also convinced the Court that OSHA standards, sought to be admitted to prove negligence per se of the mason, were inapplicable for several factual and legal reasons, including that the mason was not an "employee" of the metal press plant within the meaning of the statute.