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Autumn in New York Means Danger in New York

Pianko Law Group
Maurice Pianko 
October 9, 2022

How’s that for an alarmist headline? Doesn’t it make you want to click on the title, scroll down the article, and make my SEO guy really happy?

Since 2017, the number of weather-related deaths, including weather-related fall injuries, has increased 35 percent. A property owner’s duty of care doesn’t stop at the door. Property owners also have a duty to ensure that sidewalks, driveways, and other walking surfaces are safe as well. However, since different people or entities own or control these areas, these claims are legally complex.

Even if the victims survive, falls often cause serious and permanent injuries, such as broken bones and head injuries, especially if the victim has a pre-existing condition.

Tough cases don’t intimidate a tough New York personal injury lawyer. Instead, our professional team works had to collect evidence and build a solid case. We also understand what fall and other personal injury victims are going through. So, we give you solid legal advice and proactively communicate with you throughout the entire process.

Duty of Care

Most premises liability (falls, dog bites, swimming pool drownings, etc.) victims are invitees in New York. This label applies if the owner benefits, economically or noneconomically, from the  victim’s presence.

In these situations, owners have a duty of reasonable care. The entire property, including the inside and outside, must be reasonably safe. If an owner knows, or should know, about a hazard, the owner must immediately address the hazard. Furthermore, this duty of care is proactive. Owners must conduct frequent safety inspections.

A lesser duty of care applies in some cases. For example, if the victim was a licensee (permission to be on the property but no benefit to the owner), the owner only has a duty to warn victims about latent (hidden) defects. Most outdoor hazards aren’t latent defects. 

An even lower duty of care applies if the victim was a trespasser (no permission and no benefit). Certain legal doctrines, like the frequent trespasser rule and the attractive nuisance doctrine, protect some child trespassers in some cases.

New York judges usually determine the appropriate duty of care in a pretrial hearing. Then, they instruct jurors accordingly.

Knowledge of Hazard

The duty of care varies along with the owner’s relationship with the victim. The next element of an outdoor fall claim, knowledge of the fall-causing hazard, is always the same.

A New York personal injury attorney often finds direct evidence of actual knowledge during a lawsuit’s discovery phase. Defendants bury safety reports, restroom cleaning reports, and other smoking guns as long as they can. 

Discovery happens relatively late in a lawsuit, after the judge rules on procedural motions. So, if a case settles too early, the best evidence is often unavailable. That means maximum compensation is unavailable as well.

If an attorney never finds a smoking gun, that’s okay. Circumstantial evidence of constructive knowledge (should have known) is admissible as well.

To evaluate circumstantial evidence, judges often tell jurors to use the time-notice rule. The longer the hazard was there, the more likely it is that the owner should have known about it and, according to the duty of care, should have done something about it.

That’s all a bit theoretical. If you slip and fall on a patch of outdoor ice, here’s how these cases usually break down, from a knowledge standpoint.

Temperatures often drop suddenly and quickly in New York. When the temperature drops below freezing and stays there for a while, ice usually forms. You may not be a Channel 4 weathercaster, even one who gets stuck with early-morning weekend duty, but you probably know that meteorological tidbit. So, the air temperature is evidence of constructive knowledge. However, it’s pretty weak evidence.

If an employee saw ice or another obstruction on the ground, that’s better evidence. Black ice is often an issue in these situations. This clear, translucent ice is very difficult to see, especially in fall and winter when it’s dark a lot. So, an employee might walk past a black ice patch and not see it. This same issue comes up regarding victims and their ability to avoid hazards. More on that below.

The best evidence is an employee who walked on ice, whether or not s/he slipped on it. In New York courts, an employee’s knowledge is generally imputed (applied) to the owner.

Possible Defenses

A combination of comparative fault and the open-and-obvious doctrine may be the most common defense in fall injury claims. Assumption of the risk is a close second.

Contributory negligence is the go-to insurance company defense in most personal injury claims. In a fall injury claim, contributory negligence is basically an assertion that the victim didn’t watch where s/he was going.

This defense is easier to prove if the hazard was an “open and obvious” one that victims should avoid. In the outdoor fall context, clear ice is an open and obvious hazard. Black ice might be an open and obvious hazard.

Not all open and obvious hazards are open and obvious, if you follow. Many victims have eyesight issues, like age-related macular degeneration. AMD not only blurs vision. It also affects balance. So, when individuals with AMD lose their balance, even a bit, they usually fall. And, they usually fall hard.

On a related note, insurance companies cannot use pre-existing conditions as an excuse to reduce or deny compensation. Tom’s bad knee might make his injury more severe. But that’s no reason, from a legal standpoint, for him to receive less compensation. He can’t help it if he has a bad knee.

Generally, open and obvious hazards increase the victim’s responsibility. If Jamie should have seen a fall hazard and should have avoided it, her responsibility percentage might go from 35 percent to 70 percent.

In most states, that’s a very big deal. Typically, if victims are more than 49 or 50 percent responsible for falls, the tortfeasor owes nothing. But New York is a pure comparative fault state. Victims are entitled to a proportionate share of damage seven if they’re 99 percent responsible for the incident.

An open-and-obvious hazard doesn’t torpedo a damage claim in New York. Neither does a “Caution Wet Floor” or other warning sign. Such a sign only makes the assumption of the risk defense easier to prove. An insurance company lawyer must still prove the victim voluntarily assumed a known risk. On a related note, most ice warning signs are orange cones or generic “Watch Out for Ice in Cold Weather” signs. These signs and warnings rarely stop anyone from falling over anything.

Injury victims are often entitled to substantial compensation. For a free consultation with an experienced personal injury attorney in New York, contact the Pianko Law Group, PLLC. Attorneys can connect victims with doctors, even if they have neither health insurance nor extra money.

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