Slip and Fall lawyers
These incidents are the leading cause of Emergency Room admissions in the United States. Some eight million people seek emergency treatment after serious falls every year. Most of these victims are treated and released. That’s not good, for medical or legal reasons. These victims often suffer head injuries and other wounds which are difficult to diagnose. If they do not promptly get proper treatment, these injuries quickly degenerate. Furthermore, if victims don’t promptly receive comprehensive medical treatment, insurance company lawyers might later argue that their injuries must not have been very severe.
So, the diligent New York slip-and-fall accident lawyers at Pianko Law take care of first things first. We connect victims with doctors who know how to diagnose and treat slip-and-fall injuries. Then, the real work begins. We thoroughly yet quickly evaluate your case, to determine your legal options and red-flag possible insurance company defenses. Then, we collect evidence which supports your claim and refutes these defenses. Finally, when your case goes to court, we do not relent until we obtain the best possible result under the circumstances. You deserve nothing less than our best in all these areas.
Duty of Care
The level of legal responsibility often depends on the parties’ status. For example, since they are professional drivers, commercial operators have a higher duty of care than noncommercial drivers. The same thing holds true in the premises liability context. “Premises liability” is an umbrella term for claims like slip-and-falls, dog bites, and swimming pool drownings. In New York, the duty of care in a premises liability claim usually depends on the victim’s status, as follows:
Most victims are invitees. These individuals have indirect permission (an “open” sign) or direct permission (a dinner invitation) to be on someone else’s premises. Furthermore, their presence benefits the owner, either economically or noneconomically. Since the victim and owner have such a close relationship, the owner typically has a duty of reasonable care in these situations. This duty includes a responsibility to ensure that the property is reasonably safe, as well as a responsibility to conduct frequent safety inspections.
A few victims are licensees. These individuals have permission to be on the property, but there is no owner benefit. Guests of hotel guests are typically licensees. Because there is less of a connection, the duty of care is typically lower. In most of these situations, owners only have a duty to warn licensees about latent (hidden) defects, such as a loose handrail or a slippery rug.
A handful of victims are trespassers. If there was no permission and no benefit, the owner usually had no legal duty. So, the tales of injured burglars who successfully sue homeowners are mostly urban legends. Some legal doctrines, such as the attractive nuisance rule and the frequent trespasser doctrine, protect some trespassers, especially child trespassers, in some situations.
Common fall hazards include uneven walkways, obstacles in aisles, like boxes or palates, wet spots on floors, and large sidewalk cracks. Certain pre-existing conditions often increase the risk of a fall or increase the severity of resulting injuries. More on that below.
Typically, the judge determines the appropriate level of responsibility after a pretrial hearing. Then, the factfinder, usually the judge or a jury, decides if the owner knew, or should have known, about the hazard which caused the fall. A New York slip-and-fall lawyer could use direct or circumstantial evidence to prove knowledge.
In most court cases, including civil and criminal cases, direct evidence is best. In slip-and-fall cases, restroom cleaning reports, open repair invoices, “cleanup on aisle three” announcements, and other smoking guns which prove actual knowledge often surface during a lawsuit’s discovery process. So, owners who know smoking guns are out there often try to settle cases early, so they can conceal this evidence and avoid paying maximum compensation.
Circumstantial evidence is also admissible. Courts usually evaluate this evidence according to the time-notice rule, a principle which comes from Anjou v. Boston Elevated Railway, a colorful case from the early 1900s.
At a busy Boston train station, Ms. Anjou slipped and fell on a banana peel. Significantly, eyewitnesses testified that the peel was black and gritty, as if it had been walked upon. The train station owner claimed it knew nothing about the peel and therefore wasn’t responsible for Ms. Anjou’s serious injuries.
Eventually, the court ruled that since the peel was gritty and black, it had probably been on the floor awhile. Therefore, an employee should have seen it and should have picked it up. If the peel had been fresh and yellow, as if it had recently fallen on the floor, the owner probably wouldn’t have known about it.
These constructive knowledge (should have known) claims are easier to prove if another witness, or perhaps a security camera, spots an employee near the hazard prior to the victim’s fall.
Common Insurance Company Defenses
Comparative fault is one of the most common insurance company defenses in premises liability and other negligence claims. Basically, insurance company lawyers argue that the victim didn’t watch where s/he was going, so s/he is legally responsible for the fall.
New York slip-and-fall accident lawyers often use pre-existing conditions, especially if the victim was an older adult, to refute this defense. Many of these individuals have Age-related Macular Degeneration. AMD affects the straight-ahead vision people depend on to avoid wet spots and other such hazards. So, what might be an open and obvious hazard to a younger person is practically invisible to an older person.
New York is a pure comparative fault state. So, even if the victim is 99 percent responsible for the accident, the property owner is responsible for a proportionate share of damages. These damages normally include compensation for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.
Assumption of the risk, a defense which usually involves a “Caution: Wet Floor” or other warning sign, is another common premises liability defense. These signs are not get-out-of-jail-free cards. Insurance company lawyers must still prove, by a preponderance of the evidence, that the victim saw the sign, was able to read the sign, and understood what it meant. These items are often difficult to prove, especially if the victim was rather old, a young child, or had limited English proficiency.
Resolving Slip-and Fall Claims
The vast majority of these claims settle out of court. Negotiated settlements are usually good for victim/plaintiffs. mostly because they shave so much time off the case. Sometimes, the parties are not too far apart on the amount of damages and liability is relatively clear. In these situations, the parties often reach settlements on their own.
In other cases, judges usually appoint third-party mediators. These individuals work with both sides and try to forge a settlement agreement. Legally, both parties have a duty to negotiate in good faith. They must really want to settle the case, and they must be willing to make some compromises. Largely because of this added responsibility, mediation usually works.