June 25th, 2018|
According to the National Safety Council, falls are one of the leading causes of unintentional injuries in the United States, resulting in approximately 8.9 visits to the hospital every year. Oftentimes, these injuries occur because a landowner did not warn of a dangerous condition on his/her property or created a dangerous hazard on his/her property. Under Maryland, D.C. and Virginia law, anyone who owns or maintains any type of property is legally responsible for ensuring that the property is safe for the public. If they fail to do that, they may be responsible for any injuries that occur as the result of a fall on their property.
Although landowners bear responsibility for keeping their properties safe, our three jurisdictions still adhere to an archaic defense called contributory negligence. If an injured person is found to have contributed to the incident in any way, they cannot recover compensation for their injuries. The law does not allow an apportionment of fault; any contribution, no matter how slight, can completely bar an injured person’s right to recover damages.
How Contributory Negligence is Used in Slip and Fall Cases
Contributory negligence is argued in many ways. For instance, if an injured person is not looking where they are going, or if they have on some clothing that might impede their mobility, or if they are distracted in any way, this could form the basis for arguing that they contributed to their own injures and so are not allowed to recover compensation. Ignoring a warning sign or walking through an area which is not open to the public can also provide the basis for this defense.
Slip and fall injuries often occur in grocery stores. It is not unusual for produce and liquids to be left on the floors after being spilled or dropped by other patrons at the store. These spills, which are oftentimes left on the floor for long periods of time, create dangerous conditions for customers who could slip on this debris and become seriously injured. If a claim is made, the insurance company will argue that the customer was contributorily negligent by not watching where he or she was walking. Or, if there is a warning sign present, and the customer slips near that sign, the insurance company will again argue that the customer is wholly at fault. Once again, under our law, any fault at all on the part of the injured party precludes any recovery.
Oftentimes, when an injured person falls, the insurance company will put blame on the injured person by arguing that their choice of clothing made them contributorily negligent. For instance, they will argue a person contributed to their own injuries by wearing high-heeled shoes or that their floppy hat impeded their eyesight. Or, the insurance company may argue that the injured person was carrying lots of packages and that their decision to do this, while walking at the same time, caused the injury. Texting while walking or using the phone in any manner while in a public place subjects the injured person to an argument by the insurance company that they are responsible for their own injuries.
Any consumption of alcohol could bar recovery of a claim. It is very common for falls to occur at social gatherings. A person or an entity hosting a social event has a duty to all of the guests to ensure that the property is safe and free from any defects. If the host knows of a problem that you do not know about, the host has the obligation to warn you of the problem. For instance, if there is a staircase in the home that is missing a railing or has a loose step, the host must warn you of that problem so that you are not hurt. However, if you had been drinking at the party, and you fall down this dangerous staircase, your claim could be barred by your own negligence. It doesn’t matter how dangerous this staircase is; your decision to consume alcohol may become an issue in resolving your claim.
Many injuries occur on private property, perhaps in a neighbor’s yard, in their pool or around the house. Common sense suggests that if your neighbor creates a hazard, such as leaving a hose strewn across the lawn or allowing ice to accumulate on the sidewalk, that your neighbor would be responsible for the injuries that their carelessness creates. However, you too are responsible for your own choices when you visit your neighbor’s home. When you fail to “see what there is to be seen,” or when you choose to cross over the icy part of the sidewalk, the insurance company may decide that your conduct gives them the ability to withhold any settlement of your case.
How You Can Help Change the Law
For many years, lawyers who represent injured people have been lobbying their state legislatures and bringing cases before our states’ highest courts in an attempt to nullify the defense of contributory negligence. Our jurisdictions make up three of the five states that continue to completely bar recovery to injured people if they are at fault at all. Maryland’s highest court has recently ruled that any change in Maryland’s contributory negligence law must be enacted solely through the legislature, which has the ability to pass a bill to preclude this defense. For Marylanders, this means lobbying your elected officials in Annapolis is an effective way to change this dated and harmful defense.
A vast majority of the states adhere to a doctrine called “comparative fault.” This generally means that if the injured person is partially at fault, the jury may reduce the amount of damages by the percentage of the injured person’s own fault. For instance, if a jury finds that the injured person is 10% at fault, the verdict would be reduced by that amount. This system apportions fault among the parties and generally results in fairer verdicts.
Unfortunately, slip and fall incidents are likely to occur. Parking lots are slippery, stores are not maintained and repairs are not made in a timely manner. It is difficult in everyday life to fully insulate yourself from the poor choices made by others. Protection against injury and against a claim of contributory negligence requires some diligence and a constant awareness of your surroundings.
What should I do if I’m injured in a slip and fall?
If you are injured in a store, or a home, or a parking lot or any premises, it is important to take pictures of the area where you fell, to document the clothing you were wearing, to write down the names and addresses of all witnesses and to obtain a copy of any incident report that is made. It is also important to write down the exact details of how you fell and what caused you to fall. For more information about what kinds of information and evidence you should collect after being hurt in a slip and fall, take a look at my colleague Patrick Stewart’s blog post.
Do not speak to the insurance company about your case. It is prudent to retain an attorney early on in these types of cases so that you and your attorney can review your own actions. When you retain an attorney, make sure to disclose every detail of your fall; particularly what you saw, what you heard and how you acted.
Slip and fall accidents can result in serious and permanent injuries. Remember, if you fall, the insurance company and their lawyers are always looking for ways to make your fall your fault.
June 11th, 2018|
Victims matter. You may have heard or seen a version of this statement many times, given the apparent unrest and violent eruptions in many communities throughout the nation. Some may feel that this phrase (or a variation thereof) is probably a little overused and not always uttered with clarity or sincerity. However, that does not diminish its truth: victims do matter. Many of you, or at least people you know, have had the most unfortunate experience of being immobilized and victimized by a random stranger’s inept driving and recklessness. You do not have to feel powerless as you sit in shock, and maybe in pain, on the side of the road. Ponder this advice and let it embolden you and your loved ones if, or more likely when, you are put in that horrible predicament.
After being victimized by a car crash, what you do thereafter also matters. You can increase the capacity for physical and emotional healing, as well as reasonable compensation for this potentially life-changing event, notwithstanding the miserable harms and losses. The answer to how this can be accomplished may surprise you: so long as you are able to safely do so, get the police involved. If this seems underwhelming from previous police encounters, let us explore exactly how you can obtain useful information that can be decisive in future negotiations and/or litigation, if necessary.
Most will probably concede that in personal or critical injury and fatal crashes, the resources and investigation tactics employed by law enforcement officers are indispensable. However, even in collisions where there is no obvious trauma, only minor apparent property damage, in the event of a hit-and-run or in other roadside public disturbances, law enforcement officers can still render invaluable assistance and make additional determinations about commencing investigations that can prove vital as you are attempting to recover from the wreckage.
A responding law enforcement officer can help identify non-obvious safety hazards or additional threats to your personal safety. Witness identification, evidence preservation, traffic restoration, and property protection are further benefits of police involvement.
Regardless of the magnitude of the crash, Law enforcement officers have a duty to respond when called. Even in the event of no visible injury and when no official report will be issued, an officer can assist the involved parties with exchanging information. People can seem unapproachable or intimidating, especially when emotions are high after a collision. If it is safe, remain in your car and wait for the authorities to respond to facilitate the exchange. Parties should exchange driver’s licenses, vehicle registration, and insurance information. The responding officer should run a record check of all licenses and vehicle registrations, even when they appear to be valid. This can protect you against fraud. If the information presented cannot be verified or if additional issues or violations exist, the officer should issue applicable citations or supplemental reports.
In addition to verifying the identity and possibly charging the person who hit you, an officer can generate a report that objectively documents the date, time, location of the incident and comprehensive information regarding the cars and parties involved. In most cases, the weather, lighting and roadway conditions will be noted along with collision diagrams and pictures. Officers can obtain statements from the parties and examine the vehicles, assigning fault and registering contributing factors such as evidence of speeding, broken brake lights and missing signals. This can protect you against future false allegations that may attempt to shift any fault to you.
In every case in which a law enforcement officer responds to an incident, a Complaint Control Number (CCN) or case reference number will be assigned. Interested parties can then follow up with the local police station or barracks to acquire or make any related reports.
While the officer is running reports and gathering information, take a few moments to catch your breath. After a crash, your body may be in a bit of shock. Try to listen to your body; if something does not feel right, do not ignore it. Do not feel shamed about requesting medical attention when an injury may not be completely obvious. You may find that most law enforcement officers define “personal injury” as an injury that is observable or evident or for which a person is transported by ambulance. Police may totally discount only complaints of pain or discomfort without the request for hospital transport. Your health and safety are precious. Let a medical professional expertly assess any trauma. Even if you do not believe you need to be transported to a hospital, try not to needlessly move about the scene. Your body may have a delayed reaction to the impact as adrenaline can mask injury symptoms. Make sure you do not ignore any dizziness or pains. Get the treatment you need right away. Having a professional diagnose your injuries and correlate them with the motor vehicle collision can not only get you started on the path to physical recovery sooner, but it can also strengthen your credibility and secure the records needed for any future claims. Additionally, feelings of anxiety after a car crash can also be an unfortunate common occurrence. There are many ways you can work through those feelings with professional care, personal attention and time. Do not be afraid to explore your resources.
Take the opportunity to ask the responding officer questions. You may need to follow up by making your own report at the station. If new information is uncovered after a collision, a law enforcement officer will not likely have to produce a new or updated report. However, this is something that you can accomplish to preserve the record and chronicle all relevant happenings.
If you are ever the unfortunate victim of a hit-and-run, be sure to alert your local law enforcement agency right away. An officer will not be dispatched to investigate crashes that occurred on, or were discovered on, a previous date. When you delay in contacting law enforcement, you effectively diminish the chances of obtaining valuable evidence, rendering police investigation essentially moot. Again, when police arrive to investigate after a crash has occurred, and the scene has been stabilized as much as possible, their examination of the facts determines what happens next and whether an official report or additional resources are needed. To effectively develop investigative leads, the timing has to be just right to identify and interview potential witnesses and drivers, make observations of other vehicles near the scene close to the time of the occurrence, recover physical evidence that can properly be identified as being left contemporaneously to the incident and register as many details as possible while they are still fresh in your memory.
Law enforcement officers handling a hit-and-run can be expected to make all efforts to identify the striking vehicle and the vehicle’s driver. When the description of a suspect or suspect’s vehicle is available, it will likely be broadcasted from the scene. If the victim is able to record a tag or partial tag number that allows police to identify an owner, a report should document the subsequent contact with that person and record any explanations or relevant statements offered. Most law enforcement officers will have the authority to make a full custody arrest of a hit-and-run suspect, although other permissible procedures can include the issuance of citations or application for a warrant.
For a hit-and-run that has occurred on an earlier date, you may still file a report, but will need to contact your local law enforcement agency to determine the correct forms and processes.
Additional Situations That Factor Into Police Reports
As suggested before, Law enforcement officers are not required to generate an official report for every collision. In a single- or multi-vehicle property damage crash where the vehicles may or may not be disabled but are not on public property, an official report may be optional. Crashes on public roadways not resulting in disabling damage to any vehicle or not causing an impediment to the roadway may also not yield an official report. Nevertheless, you can still expect officers to follow proper procedure by ascertaining the possession and validity of drivers’ licenses, checking vehicle registrations and VIN plates against registration documents and plates and determining the wanted status of drivers or vehicles. In the event of a discrepancy, it should also be expected that the officer will then issue an official report.
Law enforcement officers are not totally infallible and the reports they generate may occasionally contain mistakes, mischaracterizations or important omissions. Law enforcement officers are primarily tasked with public safety concerns, civil infractions and criminal violations, and they may appear reluctant to get involved in determining civil liability. Try not to fret, as you can overcome these challenges as well. If an officer fails to attribute fault to the person who hit you, many times there is other evidence of contributing factors or even partial statements that can identify the negligent party. Insurance companies will often conduct their own investigation into what happened, especially if you are contesting what has been recorded. The evidence your insurance company uncovers can be sufficient to corroborate your recitation of the occurrence.
More often than not, reports of Law enforcement officers may be deemed inadmissible hearsay in civil proceedings. Accordingly, photographs of property damage and the scene of the crash, as well as repair estimates, medical records and testimony, can fortify your case. Notwithstanding any police error, with the assistance of competent counsel, you can attain a settlement or judgment that adequately endeavors to compensate you for all that has been lost.
In many cases, the law does not require you to contact the police. However, even when you do not make the call yourself, someone else does and an officer may arrive at the scene of your collision. The law enforcement officer has responded to ascertain if medical attention is required, to conduct an investigation into the occurrence and to prevent further disruption to the public or traffic. Naturally, one of the first things a responding officer will do is make contact with the drivers and attempt to discover what actually took place. There is no law that requires motorists to answer every question posed by an officer. However, being nonresponsive or rude is not appropriate either and will not prove helpful. For the most part, if an officer asks for your license, registration, and insurance information, you should comply with this request. If you fail to comply, you may then be issued citations or may be arrested.
When you are the regrettable victim of a car collision, there should be nothing to fear in dialoguing with the responding officer, especially if the other driver is quite obviously at fault and you have not done anything wrong. However, if for whatever reason you do not wish to speak with an officer, try to be polite and advise them that you do not feel comfortable answering any additional questions or that you would like the opportunity to first consult with an attorney. If an officer is generating a report, any statements you make can be recorded or noted as part of the investigation. What you say is important, and you should be afforded the opportunity to collect your thoughts or reserve your right to make an official report at a later time.
In conclusion, when someone else makes the decision to talk on his or her cellphone, run a red light or reach down for a coffee and crash into you, you have been victimized. Take time to assess your body and check on any passengers. If you can safely make a call, reach out to law enforcement. Regardless of how major or minor you feel the collision is, the assistance, verifications, evidence preservation, traffic restoration and reports that an officer can provide can empower you, changing you from a victim to a survivor, and from a survivor to a vanquisher.
April 13th, 2018|
At ChasenBoscolo, we frequently consult with clients involved in trip and falls or slip and falls. These cases are so common because falls can happen anywhere, whether it be at home, at work or around a store or restaurant. Specifically, these cases are referred to as premises liability cases because the owner of the premises may be liable to the injured person. The owner may be liable for failing to fix a defect on their property, failing to warn guests or customers about a defect on their property or failing to prevent slips or falls on their property. For more information on slip and fall cases at rental homes or apartment complexes, take a look at my colleague Shakétta Denson’s blog post.
Premises liability cases almost always end up in litigation. When you pursue a claim, the property owner’s insurance company will commonly undervalue your injury as well as your pain and suffering from that injury. These minimal insurance evaluations happen no matter how serious the injury or how much it seems the property owner is at fault. The reason for this is twofold. First, insurance companies hope that injured people will take the low offer rather than go through costly and time-consuming litigation. Second, insurance companies know that if proper evidence has not been collected and maintained at the beginning of a case, it becomes harder for the injured person to prove their case in court.
The common mistakes people make after falling are:
- Not getting full contact information for eyewitnesses
- Not notifying any employees or managers on site
- Not creating any written report or claim with the store on site
- Not taking any photographs or video of the defect or hazard that caused their trip or fall
While your lawyer can help gather this information during an investigation, the best point in time to gather this information is immediately after your fall.
What should I do if I am hurt in a fall?
If you do fall, what steps should you take to increase the chances that you and your lawyer can win your case if and when it ends up in court? The best cases are initially built on four core pieces of evidence:
In order to be liable to an injured person, a property owner must first have notice of the defect on their property. In other words, before the fall, the property owner or their employees had to have been aware that there was a defect or hazard that needed to be fixed, cleaned or warned about to their customers and/or guests. Sometimes when a person falls, an eyewitness will say:
- “I almost just fell there too.”
- “I just told them to clean that.”
- “I just told them to fix that.”
- “I just told them they should put a warning sign up.”
If someone says something like this to you after your incident, get their first and last names and phone number immediately. Their testimony may be the key to proving the owner had notice of the problem and failed to fix it or warn other people. However, that testimony may not occur until 2–3+ years after that incident. Your lawyer will want specific contact information for the witness so they can take a statement, get it in writing and have the witness sign it. During litigation, your lawyer can use this signed statement to refresh the witness’ memory when they testify. The more contact information and description about the witness, the better. Only obtaining the first or last name is not enough. If you only obtain the witness’ first or last name, it may be impossible to locate them to testify. Some witnesses may have to be subpoenaed to come testify, so this contact information will ensure that they can be served and compelled to appear in the future at a deposition or in court. In summary, you would want as much of the following information as possible from an eyewitness:
- First and last name
- Home phone number
- Cell phone number
- Home address
- E-mail address
- Physical description (in case they need to be subpoenaed in the future)
Another great source for notice of a problem on a property are the employees who work there. Employees can be the first people to respond to an injured person. Sometimes those employees may make an offhand comment that shows that the store was aware of the problem before the fall. Clients in the past have had employees tell them things like:
- “That has been happening a lot lately.”
- “We have been meaning to clean that up.”
- “We have not gotten around to fixing that.”
- “We really should put a warning sign up.”
If an employee says something like this to you, get their first and last name and job position immediately. Similar to eyewitnesses, these employees may not have to testify until 2–3+ years after your fall. During that time, the employee may have changed jobs or moved out of the area entirely. If that employee is no longer with the company, the company does not have to voluntarily produce that former employee as a witness. In that situation, your lawyer may have to locate and subpoena the ex-employee just like any other eyewitness.
Alternatively, there may be employees who do not help or talk to you after you fall. We have had cases where employees have seen our clients fall and have laughed, pointed or joked to one another about our client. These employees’ names and positions are just as important because their behavior shows a failure of the company to follow their own policies and procedures, as well as displays a lack of basic human decency. When jurors hear stories like that in court, it can help drive their verdicts.
Lastly, do not leave without talking to a manager-on-duty (MOD). These are usually the last company employees that will speak with you before you leave. If you cannot speak with all the employees discussed above, then the MOD should provide that information, as well as their own contact information, so you can make a proper insurance claim. In summary, when dealing with company or store employees and managers, you should gather the following information:
- First and last name
- Job title
- Physical description (in case they need to be subpoenaed in the future)
Potential clients will often discuss how after they fell, they talked to one or two people and then left the scene to go seek medical attention. Your health and safety should always come before gathering evidence and talking to witnesses. However, if you can talk to employees and managers on the scene, then you should obtain a copy of the written report or a report/incident number. If you do not have this information, then your case is not starting off on the right foot.
Companies should have policies and procedures in place where they create reports after injuries occur on their property. These procedures are in place so that the company can notify their insurance company and handle the claim. These reports should list some combination of the date and time of the incident, a description of the incident, your name, witness name(s), employee name(s), manager name(s) and an incident or reference number. This is basic information that will help prove that you were at the site when you were injured and that you took the appropriate steps to notify the company. If the report is not immediately available and there is no reference number yet, you should also ask for the contact information for the store’s insurance claims representative. You can even call that representative while you are on site.
Occasionally, a manager may offer some incentive or giveaway to you as an “apology” for falling at the store or restaurant. These incentives could include a coupon or discount for a free meal or a free drink. While it is generally okay to accept these, they can really be meant to distract you from getting the right information and making a written report with the company. Remember to avoid these distractions and make a proper report. If you are injured, a $20 free meal will not make up for a life-changing injury.
4. Photographs and Video
Pictures and video can be the most credible forms of evidence because, while the plaintiff and defendant may tell their own version of the incident, the pictures and video speak for themselves. A verbal description of a hole, a puddle, a spill or a defect is never as accurate as photographs or video showing the actual problem. With all that in mind, if you leave the scene of your fall without taking your own photographs or video, it can be a major detriment to your own case. In a time where nearly everyone has a cell phone with a camera and video capabilities, leaving the scene of a fall without taking photographs is inexcusable.
The property owner’s initial response will be to clean a spill, fix the defect or put down a warning sign. If that happens and you do not have pictures that show the conditions at the time of the fall, then it becomes your word vs. the owner’s word. Furthermore, evidence that the owner fixed the defect or cleaned the spill is not admissible evidence at a trial. This is because courts want to encourage property owners to fix defects before another guest or customer is hurt. It is best to photograph or record the scene before any corrections are made.
Aside from not taking pictures at all, a common mistake is taking photographs that are blurry or so close-up that they are incomprehensible. A good photograph is one that you could show anyone on the street and they would immediately know what they were looking at. You should take as many pictures as you can from as many angles as you can. You can place a common object down next to the spill or defect to demonstrate its scale and size (e.g a shoe, a dollar bill, a pen, etc.). Take photographs and video from a 360° view from different distances. The more pictures, the better, because you and your lawyer can always choose which ones to present in court.
Many stores and restaurants will have security cameras inside and outside the store. If you have fallen, you should ask the manager to preserve the security video as soon as possible, and you should put that request in any written report. Since the cameras run for hours at time, owners will usually choose to record over old footage rather than preserve old footage where no incident occurred. Lawyers can send letters asking companies to preserve this information for court. However, if weeks or months have gone by since the fall, the footage may have already been erased. That is why taking your own videos and photographs is just as important as obtaining the store’s own camera footage.
Tl;dr (too long, didn’t read): Tips for Gathering the Right Info After You Fall
Falls can obviously result in severe injuries. Many commercial properties have insurance policies to cover injuries that occur on site. However, those insurance companies are not always eager or willing to pay claims related to those falls. More likely than not, an injured person will have to pursue a lawsuit to be fully compensated for their injuries after a fall. A good premises liability case begins with witnesses, employees, reports and photographs.
At ChasenBoscolo, we are not afraid to go to battle with an insurance company in court, but we have to have the right amount of ammunition to win. We have certainly pursued premises liability cases in the past with only some of the evidence listed above. Additionally, we can obtain witness names, employee and manager names, reports, photographs and much more during a lawsuit. However, the best time to gather this information will always be on site immediately after the fall. It ensures that visual evidence is preserved for the future and begins the process of making an airtight injury claim.