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.
April 6th, 2018|
Within their homes, more than 11,000 people die each year from preventable, unintentional injuries. Everyone deserves a safe place to lay their heads at night and the security of knowing that their home is indeed their castle. If you are a tenant in privately or commercially owned residential housing and you get injured through no fault of your own, you have rights. These types of incidents and injuries fall under what is called premises liability.
If I am a renter and I get hurt at home, who is responsible?
Unless required by the lease or by state or local law, the landlord/owner is not responsible for maintaining the property, other than to ensure that dangerous conditions do not exist on the property. Local laws mostly require that the property is habitable and that a specific unit meets certain minimal standards before it can be rented. Generally, if something in the rental unit needs to be repaired, the landlord is required to repair it. However, the tenant must notify the landlord about the problem in writing. If the tenant’s property or body is damaged by the landlord’s failure to make repairs required by the lease or law, the tenant may file a civil action for damages against the landlord. However, the landlord may not be liable for damages that are beyond his or her control.
Landlords and property owners are responsible for making a home safe and habitable for their tenants. This includes regular inspections, proper and plentiful maintenance staff and quick, proper and timely repairs. Many injuries such as slips, falls and injuries resulting from ceiling collapses can be the result of improper maintenance. Other more remote injuries, such as mold exposure due to the improper cleaning of moisture and lead paint poisoning, are also things that could be the result of potential negligence on the part of the landlord/owner.
The responsibility of the landlord is called a standard of care. Standard of care is a legal term that means the attentiveness, prudence and caution that a reasonable person must exercise under the circumstances. If the landlord/owner does not meet the standard of care, the landlord can be liable.
If You Are Injured in a Rental Property
Many people are aware that if there are serious defects in your rented home, you have Rent Escrow as an outlet. For a landlord/owner to be liable to someone for injuries sustained on their property, a few things have to happen. You must show that:
- The landlord/owner had a duty (responsibility) to fix the dangerous condition that existed;
- The landlord/owner breached this duty by not fixing the condition in a reasonable amount of time;
- The problem would not have been unreasonably expensive or difficult to fix;
- The landlord/owner had knowledge of the condition;
- The cause of the injury was the choice to not repair the dangerous condition;
- The injury that happened was one that is known to be caused by such dangerous conditions (i.e., “foreseeable”); and finally,
- The landlord’s negligence (i.e., their choice to not fix this condition) directly caused the injury.
To explain this a little better, here’s an example:
Let’s say that there is a terrible rainstorm and a tenant’s apartment floods from the ceiling in several places. The tenant promptly notifies her landlord by phone and emails photos of the leaking. The storm eventually stops, and so does the leaking. The landlord does not come to the apartment to inspect or check the ceiling for water damage. One month later while the tenant is sleeping, their ceiling caves in on top of them. They sustain a concussion.
In this scenario, the tenant can prove that the landlord had a duty to inspect the celling after the leaking and repair any water damage. Fixing the ceiling with new drywall would not have been unreasonable or unreasonably expensive. If the landlord had repaired the wet drywall it would not have fallen, and the tenant would not have been injured. Getting a concussion is serious and foreseeable as a result of someone being hit on the head with drywall, and the choice of the landlord not to fix the drywall directly caused the concussion.
If you are successful with all of these elements, you can potentially recover monetary damages to cover your:
- Medical bills
- Lost wages
- Physical injuries
- Emotional distress
- Pain and suffering
- Personal property damage
What if a child is injured on a rental property?
Additional care is shown to children, who are seen by the law as less able to appreciate the dangers and risks. Landlords/owners may not, however, be liable for the intentional, reckless or dangerous behavior on the part of the tenant that results in an injury.
What if I’m hurt as the result of a crime that happened on a rental property?
It is also important to keep in mind that negligence on the part of a landlord can also extend to potential criminal dangers to tenants. Landlords/owners are also under an obligation to ensure that the building is free from criminal activity as well. This means that apartments are equipped with deadbolts or other secure locks so that tenants can adequately secure their living spaces. They must keep buildings free from illegal activity.
What if I have friends or family over to my house?
Landlords can also be liable to visitors to the property who are allowed or permitted to be on the property. The landlord is responsible for maintaining shared common areas (stairways, hallways, parking lots, etc.), and if someone is injured in/on those common areas, the landlord could be held liable. There are some situations where a landlord/owner might not be held liable. Those are situations where the danger is “open and obvious.” This means something an average person would and could have identified and avoided.
Negligence Per Se
There are certain situations where there is a law that is specifically designed to protect tenants. For example, if smoke alarms are missing from an apartment and someone is injured as a result of a fire or carbon dioxide, this is called negligence per se. In these situations, the landlord will be held liable without the need for additional proof. The tenant simply has to show the following:
- The landlord/owner violated the law;
- The law was specifically designed to protect from the type of injury that resulted; and
- The tenant was injured as a result.
What if you’re the homeowner and someone gets hurt on your property?
Now, what happens if you are a private homeowner and someone is injured on your property? Do you have the same obligations to the mailman as you do to your visiting family? Do you have any obligations at all? Yes…and no.
If someone is injured on your property, you could be held responsible, and in some situations, there is no negligence needed. A slip, fall or trip on your property that resulted in an injury would be a situation where the injured person would have to prove that there was something you did not do that you should have done or that you did do that you shouldn’t have done to keep your property free from hazards. For more information on these kinds of cases, specifically when it comes to snow and ice, check out Tom Teodori and Ben Boscolo’s recent blog post on the topic.
However, there are some things that you are automatically responsible for. This concept is called “strict liability.” For example, in Maryland, if someone is bitten by a dog on your property, they may be able to make a claim without needing to prove that you did something wrong.
When someone is injured on your property, they are covered by your homeowners’ insurance policy. The liability coverage under your homeowners’ policy will pay all of the harms and losses that result from the injury. If there is a lawsuit filed against you, they will also provide you with a defense.
Despite all of this, it should be understood that every case and situation is different and no two are alike. Different states apply things differently, and the type of property that you are on, own or have contracted about may change the responsibility. If you’ve been hurt on someone else’s property, you should do your research and seek out someone you trust to help you protect your legal rights.
March 21st, 2018|
Some view a blanketing of snow as a welcome occurrence, while others see it as an annoying disturbance. Regardless of your viewpoint, snow and ice frequently result in workplace injuries or negligence claims. In 2014, more than 42,000 people were hurt on the job in snow- and ice-related accidents. These types of injuries often result in time away from work and the need for medical treatment. The most common injuries are traumatically caused from slipping and falling or are exertional injuries from snow removal. These injury categories may be very broad, but they often involve strains and sprains to the neck and back, broken bones, concussions, joint injuries to the knees, hips or shoulders, spinal injuries and/or heart attacks. Although snow- and ice-related injuries affect people of all ages, the elderly are particularly susceptible.
If you were injured while working due to weather-related conditions, you may be entitled to workers’ compensation benefits. The District of Columbia, Maryland and Virginia have distinct laws when it comes to workers’ compensation, so knowing and being advised of your legal rights is important. For more information on those rights, check out David Kapson’s recent blog post.
How can I stay safe while walking in wintry weather?
The National Center for Injury Prevention and Control, a division of the Centers for Disease Control and Prevention (CDC), reports that falling is the leading cause of non-fatal injuries for those 24 years and older. In order to protect yourself while walking on snow-covered or icy sidewalks and parking lots, you should be mindful of the following:
- If you do not have to go out, the best way to stay safe is to stay at home to allow snow and ice removal teams to do their jobs.
- If you have to go out, please be patient with the working men and women who are cleaning up our communities. Here are a few suggestions:
- Don’t rush. It’s normal to want to get inside and warm up, so people are often in a hurry to get out of the unpleasant weather conditions. However, it’s safer to take it slow and use flat-footed and small steps—almost like a penguin. Stay on cleared or treated walkways and avoid untreated shortcuts.
- Wear proper footwear for the conditions—avoid heels and smooth-soled shoes.
- Stay off your phone, watch where you are walking and try to avoid carrying heavy loads.
- Be very careful when stepping on or off of curbs, as well as when getting in and out of cars.
- Be mindful of areas that have been subject to refreezing and black ice.
Following these suggestions should help keep you safe. If you are being as careful as you can be but you still fall and are injured, there are laws in the District of Columbia, Maryland and Virginia to protect you. If this happens, it is important that you speak with a trial lawyer who is experienced in handling slip and fall cases.
How long do property owners have to clear sidewalks after a snowstorm?
The simple fact that you fell and are injured does not mean that the person who owns the property is responsible for taking care of your medical expenses, lost wages and potentially life-changing injuries.
In D.C., property owners are required to clear the sidewalks within 8 daylight hours of a snowstorm. Both businesses and homeowners face fines for not clearing sidewalks.
Maryland does not have a statewide snow removal law. The safety rules for snow removal are set by the individual counties. Montgomery County requires property owners to perform snow removal within 24 hours. Property owners in Prince George’s and Howard Counties have 48 hours to complete snow and ice removal. Charles County has no safety rules requiring property owners to shovel snow and clear ice from sidewalks.
Virginia also leaves the snow and ice removal safety rules to the local governments. The City of Alexandria requires snow clearing within 24 to 72 hours, depending upon the severity of the storm. Arlington’s snow and ice removal rules allow 24 to 36 hours, depending upon the severity. Neither Fairfax County nor Prince William County have safety rules for snow and ice removal.
Who is responsible?
While the law is designed to protect our communities and its members, actually holding the person who caused the injury accountable can be very tricky for multiple reasons:
Both businesses and homeowners have insurance to protect them if someone is hurt by their negligence or irresponsibility with snow and ice removal. But insurance companies employ armies of lawyers whose jobs are to protect the insurance companies’ money. They know all of the tricks that can be used to avoid having to pay for an injured person’s medical expenses, lost wages and life-changing injuries. When an injury in a fall changes your life, it’s important to talk with a trial lawyer who has actually gone to court in these kinds of cases to have a fighting chance against the insurance company’s lawyers.
Here are a few of the legal tricks that insurance company lawyers use:
- First, the insurance company will say there’s nothing the business or homeowner could have done to prevent the fall or the resulting injuries. This is simply not true. An experienced trial lawyer will know how to show all of the steps that a responsible property owner should’ve taken in order to prevent ice and snow from creating the risk of a fall, much less the fall that actually happened.
- Second, the insurance company’s lawyer will argue that the business or homeowner did not know that there was a dangerous condition on their property. This argument stops many innocent people from being protected since proving that the property owner had notice requires very specific evidence. Again, an experienced trial lawyer will know how to fight the insurance companies’ tactics and find the evidence needed.
- Finally, and most dangerously, is contributory negligence. The District of Columbia, Maryland and Virginia are three of the five states in the United States that still follow the rule of contributory negligence. What that means is that if the insurance company’s lawyer shows that the injured person was 1% at fault for the fall, the property owner is not responsible to pay for the injuries.
Beware of Recorded Statements
When someone in our community is injured by a property owner’s choice to not follow the snow and ice removal safety rules, the injured person will likely get a phone call from a representative of the property owner’s insurance company. The insurance company will tell the injured person that they need to take a statement to set up the claim. DO NOT GIVE A STATEMENT. That statement will give the insurance company lawyer all the ammunition they need to shoot down your claim.
How do I stay safe while driving during winter storms?
People who are not able to stay at home during winter storms frequently have to drive. But driving in winter conditions is more dangerous than trying to cross slippery sidewalks and parking lots on foot. According to the National Highway Traffic Safety Administration (NHTSA), 17% of all vehicle crashes are caused by winter weather conditions. More than 1,300 people lose their lives in snow- and ice-related vehicle crashes each year. In addition, more than 116,000 people are injured in snow-related crashes annually.
IF YOU CAN STAY OFF THE ROADS, YOU SHOULD DO SO.
If you do have to leave your home, here are a few suggestions to keep you safe while you are driving to help protect both yourself and those on the road around you:
- Make sure your vehicle is winterized and that you have appropriate clothing and supplies in your car in the event that something goes wrong.
- Since everything takes longer on snow covered roads, remember to accelerate, brake and turn slowly. Give yourself and your vehicle time to safely respond.
- Double your following distances.
- Try to avoid stopping on hills. Maintain some momentum in order to prevent getting stuck.
- Try to avoid coming to a complete stop. If you can slow down enough to keep rolling, you will lesson your chances of getting stuck.
- If all else fails, be mindful that if its not necessary, don’t go out until government crews have safely treated the roads.
If you are injured by an irresponsible driver during winter weather conditions, the laws of the District of Columbia, Maryland and Virginia will protect you. The irresponsible or negligent driver is required to pay for your medical expenses, lost wages and interruption in your life that they cause.
We all know that the drivers on the roads in our community are covered by insurance. If you are injured in a car wreck during winter weather conditions, you should talk to a trial lawyer who has a track record in court with these kinds of cases. Many people believe that making a claim for injuries in a car wreck will cause their insurance bills to go up. THIS IS NOT TRUE. Only the person who causes the wreck will pay higher insurance bills.
How Insurance Companies Protect Irresponsible Drivers in Winter Weather Crashes
Just like in fall cases, drivers who do not follow the traffic safety rules are protected by insurance companies and their armies of lawyers. Everything the insurance company says to you and asks you to do after a wreck is carefully planned. The plan is designed to make sure the insurance company lawyer can make the injured person look like a liar, a faker or a fraud at trial. DO NOT TALK TO THE INSURANCE COMPANY WITHOUT GETTING LEGAL ADVICE FIRST.
Just like in slip and fall cases, there are legal defenses that relate to winter weather conditions that can be used to protect drivers who do not follow the traffic safety rules—and their insurance companies’ wallets. Two of these defenses are the “sudden emergency doctrine” and contributory negligence.
An insurance company will argue that winter weather conditions create “sudden emergencies.” They will say that these emergencies make car wrecks unpreventable. But this is simply not true. If the injured person gives the insurance company a recorded statement, one of their goals will be to gather facts from that person that can be used in court to prove that the injury was the result of an unpreventable sudden emergency. A trial lawyer that fights insurance companies in court will know how to stop the insurance lawyer from using this trick to avoid accountability.
Contributory negligence in a car wreck case is the same as in a slip and fall case. What this means is that if the insurance company’s lawyer shows that the injured person was 1% at fault for the wreck, the irresponsible driver gets a pass for the injuries they caused. Again, this is why it’s important to talk to an attorney before you talk to the insurance company, even if it is just to know your rights.
Winter weather can be very dangerous, especially when people behave irresponsibly. Thinking about the dangers is the first step in protecting ourselves and our loved ones from suffering life-changes injuries. No matter how careful we are, the choices other people make can still lead to life-changing injuries. If that happens, its important to know your rights and your legal options. This doesn’t just help you get justice—it helps make our communities safer by making it clear that property owners and drivers who take a snow day on the safety rules won’t get a pass.