Month: May 2017

• Could the Property Owner Have Prevented the Accident?

  If you or a loved one has been injured in a slip and fall accident, it may be tempting to seek out justice in the form of a lawsuit as soon as possible. But stop and ask this question first: If the property owner was more careful, could the accident have been avoided?

  For example, even if a leaking roof leads to a slippery condition that you slip and fall on, the property owner may not be responsible for your injuries if there was a drainage grate in the floor designed to limit slippery conditions. In addition, property owners will not always be responsible for things that a reasonable person would have avoided, such as tripping over something that would normally be found in that location (like a leaf rake on a lawn in the fall). Every person has a responsibility to be aware of their surroundings and make efforts to avoid dangerous conditions.

  Property Owner’s Duty to Maintain Reasonably Safe Conditions

  However, this is not to say that property owners are never held responsible for the injuries of others that slipped and fell on their property. Although there is not a cut-and-dried rule, property owners still must take reasonable steps to ensure that their property is free from dangerous conditions that would cause a person to slip and fall. However, this reasonableness is often balanced against the care that the person that slipped and fell should have used. What follows are some guidelines that courts and insurance companies use when determining fault in slip and fall accidents.

  Liability for Slip and Fall Accidents

  If you have been injured in a slip and fall accident on someone else’s property because of a dangerous condition, you will likely need to be able to show one of the following in order to win a case for your injuries:

  • Either the property owner or his employee should have known of the dangerous condition because another, “reasonable” person in his or her position would have known about the dangerous condition and fixed it.
  • Either the property owner or his employee actually did know about the dangerous condition but did not repair or fix it.
  • Either the property owner or his employee caused the dangerous condition (spill, broken flooring, etc.).

  Because many property owners are, in general, pretty good about the upkeep on their premises, the first situation is most often the one that is litigated in slip and fall accidents. However, the first situation is also the most tricky to prove because of the words “should have known.” After presenting your evidence and arguments, it will be up to the judge or jury to decide whether the property owner should have known about the slippery step that caused you to fall.

  See Economic Recovery for Accidents and Injuries to learn more about the types of damages you may be able to claim in a slip-and-fall lawsuit. To get a ballpark figure of what your case may be worth, take a look at our Worksheet: Damage Estimate.

  Reasonableness

  When you set about to show that a property owner is liable for the injuries you sustained in your slip and fall accident, you will most likely have to show, at some point, the reasonableness of the property owner’s actions. See Standards of Care and the “Reasonable” Person to learn more. In order to help you with this situation, here are some questions that you or your attorney will want to discuss before starting a case:

  • How long had the defect been present before your accident? In other words, if the leaking roof over the stairwell had been leaking for the past three months, then it was less reasonable for the owner to allow the leak to continue than if the leak had just started the night before and the landlord was only waiting for the rain to stop in order to fix it.
  • What kinds of daily cleaning activities does the property owner engage in? If the property owner claims that he or she inspects the property daily, what kind of proof can he or she show to support this claim?
  • If your slip and fall accident involved tripping over something that was left on the floor or in another place where you tripped on it, was there a legitimate reason for that object to be there?
  • If your slip and fall accident involved tripping over something that was left on the floor that once had a legitimate reason for being there, did the legitimate reason still exist at the time of your accident? For example, tripping over a can of paint in a living room is probably not reasonable if the last time the room had been painted was over 2 years ago and the owner had no immediate plans to repaint the room.
    

  Carelessness/Clumsiness

  Most states follow the rule of comparative negligence when it comes to slip and fall accidents. This means that if you, in some way, contributed to your own accident (for example, you were talking on your cell phone and not paying attention to a warning sign), your award for your injuries and other damages may be lessened by the amount that you were comparatively at fault (this percentage is determined by a judge or jury). See Defenses to Negligence Claims for information about comparative negligence.

  Like researching the liability of the property owner, there are some questions that you can ask of yourself to estimate how likely it is that you will be found to be comparatively negligent:

  • Did you have a legitimate reason for being on the property owner’s premises when the accident happened? Should the owner have anticipated you, or someone in a similar situation to you, being there?
  • Would person of reasonable caution in the same situation have noticed and avoided the dangerous condition, or handled the condition in a way that would have lessened the chances of slipping and falling (for example, holding onto the handrail while going down icy stairs)?
  • Did the property owner erect a barrier or give warning of the dangerous condition that led to your slip and fall accident?
  • Were you engaging in any activities that contributed to your slip and fall accident? Examples include: running around the edges of pools, texting while walking, jumping or skipping, attempting to ice skate while in your business shoes, etc.

  If you have been talking with the insurance company about a possible settlement for your injuries, you will probably be asked many questions that are similar to these. Although you will not have to prove to the insurance company that you were extremely careful, you will probably have to show enough so that the insurance company can conclude that you were not acting negligently.

  ance company believes that you and/or some other party bear some responsibility for your own injuries.

• The insurance company does not believe that you were injured, or that you were injured as badly as you claim.

All civil actions, including wrongful death actions, have inherent time limits for when they must be filed. These time limits, or “limitations periods,” are called statutes of limitations. When the statute of limitations period runs out, you lose your right to sue on your legal claim.

The states each have their own statute of limitations laws pertaining to wrongful death actions – some with only a year, most with two or three years, and some with even more. Speak with a qualified local attorney to determine the law of your jurisdiction and to help determine if your case is still valid as per the applicable statute of limitations rule.

The “Discovery Rule” in Wrongful Death Actions

The running of a limitations period in a wrongful death action has been held to commence when the party bringing suit discovers, or in the exercise of reasonable diligence should have discovered, the cause of the decedent’s death. Some states hold that the right to bring a wrongful death action is fundamental. Courts in these states have held that the limitation period for a wrongful death action begins to run at the death of the injured person unless the application of the limitation period would destroy the cause of action before it reasonably could be discovered. A rule known as the “discovery rule” may be applied in wrongful death actions to determine whether the decedent knew or should have known of the cause of his illness or injury before his death, so as to start the running of the limitations period in the wrongful death action before the decedent’s death.

Special Considerations in Wrongful Death Actions

Where a wrongful death action is viewed as a derivative action (that is, arising out of a personal injury action), it may be time-barred by a statute of limitations if the decedent had no claim at the time of death because he or she failed to bring a personal injury claim within the limitations period for that injury. Additionally, in some states, wrongful death actions based on product liability are subject to special limitations periods that start to run on the date of the decedent’s death, regardless of the knowledge or lack of knowledge of the party bringing the action concerning the cause of death. In these states, the discovery rule doesn’t apply to such suits.

Some states also have what are called “statutes of repose,” which prohibit product liability claims where a product has reached a certain age. These rules may come into play in a wrongful death action arising from a defective product, particularly in cases where a product has been off the market for an extended period of time.

Tolling a Statute of Limitations Period

All is not lost if you have run out of time on your statute of limitations period. You have three last resort options to extend the time limit: a) tolling the statute of limitations, b) having it waived by the court, and c) having it waived by the opposing party.

Plaintiffs may attempt request the court to waive the statute of limitations so that their lawsuit can be filed. For the court to waive, however, the situation must meet very specific criteria to merit waiver, and this is very uncommon. It’s also unlikely that a request for waiver sent to the opposing party will be met with a positive response.

On the other hand, tolling (delaying or suspending) of the statute of limitations period is much more common, but whether tolling is acceptable depends on the applicable state law. The discovery rule could be considered tolling in the sense that it delays the running of the statute of limitations. Similarly, there are other situations that warrant tolling.

For example, minor children cannot use up their statute of limitations while they are still minors. Thus, in a wrongful death action by a child for the death of his mother, the child can file the wrongful death action many years later as the statute of limitations would not start to count down until the child turned 18 years old. In general, the courts weigh the positive benefits of tolling – a plaintiff being able to file his or her claims – against the prejudice towards the defendant.

The purpose of this information is to enlighten you about personal injury law and to explain how the different parties involved will handle your case. A thorough understanding of the details of your personal injury case can help promote a fair, adequate settlement.

Q: What is the most important thing for me to do after my injury?

The most important thing for you to do, quite simply, is to recover from your injury. The law requires injured people to “mitigate their damages.” In other words, the law requires you to do that which is necessary to improve your physical condition and recover from your injury.

Q: How will my lawyer handle my case?

After initial meetings with you, your lawyer will investigate your claim. This usually requires a review of some or all of the following:

• Witness statements
• Police reports
• A possible visit to the scene of the incident
• A review of appropriate laws
• A review of all medical reports

Q: How will my lawyer be paid and what is a contingent fee agreement?

In almost all personal injury cases, your attorney will be paid by keeping a percentage or portion of the final settlement or court award resulting from you injury. The percentage will be discussed with you and will be the subject of what is called a contingent fee agreement. The law requires, for your protection and that of your lawyer, a written contract which specifies the fee he or she will charge so there will be no misunderstanding about how much your case will cost.

Q: What can I do to convince the insurance company that my claim is valid?

As stated above, the most important thing you can do is to recover as quickly as possible from your injury. Insurance company personnel tend to believe those people who actively try to recover from their injuries. Also, insurance companies believe those people who can document their injuries through medical bills, credible medical reports and accurate lost wage information that is neither exaggerated nor subject to dispute and interpretation.

Q: When will my case settle?

It is impossible in the early stages of a personal injury claim to predict when that particular claim will actually settle. Some cases settle in a matter of months after the injury while others can take years to get to settlement or trial.

Q: How much is my case worth?

This question is one of the most frequently asked questions and is also very difficult to answer in the early stages. It is virtually impossible to predict the value of a case until all of the information has been collected and you have recovered or almost recovered from your injury. There are many factors that determine the value of a case and reasons for settling. Some include:

• The actual amount of all of your medical bills.
• How much income and other employment benefits were lost as a result of your injury.
• Whether or not any aspect of your injuries are permanent. This would also include permanent disfigurement such as scars, blemishes and other disfigurement characteristics.

Q: After the insurance company and my attorney agree upon settlement, how long will it take to get my money?

After an agreement has been reached between the insurance company and you through your lawyer, it usually takes between two and six weeks to complete the settlement process. There may be exceptions to his range, but the average time to sign all documents, receive the check, and figure out the exact proceeds for each party usually requires at least a month.

Q: What has to be done before I get the money that is due me from the settlement?

First, the insurance company will require that you, and perhaps your spouse, sign a release. This is a document that settles your claim. In the release you will read language stating that you are forever giving up your right to sue the person, persons or company who was responsible for your injuries. In exchange for giving up your claim, you will receive a certain sum of money when the insurance company receives the release.

Second, your lawyer will have to pay medical bills that have not been paid and may be required to reimburse any insurance company that has expended money for medical bills.

Third, your lawyer will deduct attorney’s fees, out-of-pocket expenses, and other possible costs associated with the claim. After all deductions have been made, you will receive the balance in a check processed from your own attorney’s office.

Q: What factors would cause my case to go to litigation?

There are usually several reasons why a case does not settle including the following:

• The insurance company believes that you and your lawyer have asked for more money than they are willing to pay voluntarily for the claim.
• Liability, that is, who is at fault, is either being denied by the insurance company or the insurance company believes that you and/or some other party bear some responsibility for your own injuries.
• The insurance company does not believe that you were injured, or that you were injured as badly as you claim.

Statute of Limitations: Overview

Under a legal rule known as the “statute of limitations,” any lawsuit arising from an accident or injury must be filed within a certain time limit or the injured person’s legal claim will be barred and his or her right to sue will be lost forever. Every state has enacted its own statute of limitations, requiring any personal injury suit be filed in court within a set time after the incident or injury. The specific limit prescribed by each state ranges from one year (in Kentucky and Tennessee) to six years (in Maine and North Dakota).

Different Time Limits for Different Types of Claims

In some states, the type of personal injury claim may also affect the time limit. For example, certain defamation cases and claims involving minors (persons under age 18) may be granted longer time limits, while medical malpractice statutes of limitations may grant shorter time limits.

Typically, the statute of limitations in a lawsuit for injuries to a minor does not begin to run until he or she reaches the age of 18. For example, suppose Pat is injured in a car accident on his 17th birthday. In a state that has a two-year statute of limitations for personal injury lawsuits, Pat will have three years to file suit for injuries suffered in that accident.

The “Discovery of Harm” Rule

While a statute of limitations may declare that a personal injury lawsuit must be filed within a certain amount of time after an accident or injury, that time period usually does not begin to run until the moment when the person filing suit knew (or should reasonably have known) that they had suffered harm, and the nature of that harm.

An example of this “discovery of harm” rule is a medical malpractice claim in which a surgeon mistakenly left a temporary bandage in the abdomen of a patient, but the error was not discovered until years later, during another surgical procedure. In such a case, the patient had no reason to know of what happened, and this lack of knowledge could not be called unreasonable under the circumstances. Most likely, the statute of limitations would not begin to run until the day on which the first surgeon’s mistake was “discovered” by the patient, rather than from the day on which the first surgeon actually made the mistake.

Remember that the delay in discovery must be one that is reasonable under the circumstances. So, if the patient in the above example was experiencing abdominal pain after the first surgery but refused to seek medical treatment for a number of years, his or her lawsuit may very well be barred by the statute of limitations. Also, the “discovery of harm” rule will almost never arise in the most common types of injury claims — those after car accidents and slip and fall incidents. This is because such occurrences usually leave nothing to “discover” in terms of the source and nature of any harm suffered.

However, the discovery rule may apply in some wrongful death cases.

The Statute of Limitations in Your State

As mentioned above, every state has enacted its own statute of limitations, requiring any personal injury suit be filed in court within a set time after the incident or injury. The specific limit prescribed by each state is identified in the chart below, along with a link to the relevant state law.