Alabama Personal Injury Blog - Property Owner's Liability (Slip & Fall) - Most Popular

If I slip or trip and fall can I sue?

Danny Feldman — Tue, 23 Jun 2009 08:31:39 GMT

Every time someone falls down, people make jokes that the injured person will end up "owning the place." What does the law say about a premise owner's potential liability if someone falls on your property?

In Alabama, and a few other states, it depends on the right, or lack thereof, that the person who fell had to be on the property. For example, the duty of a premise owner to someone who is trespassing on their property is very, very low. On the other hand, if someone is a "business invitee" - that is, if someone is on the property to benefit the property owner (like a customer of the store or restaurant) then the premise owner has a higher duty. However, that duty basically is not to be negligent - or in other words, to act as a reasonably safe business owner would act in similar circumstances.

Let's take a look at a couple of examples. Say you visit Wal-Mart or any store for that matter and another customer walking directly in front of tosses the proverbial banana peel. With your next step, you slip on it and break your neck. Can you sue Wal-Mart? Sure. Will you win? Absolutely not. You must show more than the fact that you fell on the store's premises and that you got hurt. You must show that the store was negligent. In the example above - what did the store do that was unreasonable? Not a thing. So, while you may have a claim against the person that tossed the peel (good luck recovering on that, unless the person happens to be Donald Trump or someone else of personal means) you do not have a claim against the store.

Let's vary the facts a bit. The same customer tosses the banana peel 8 hours before you enter the store. A manager sees it 15 minutes later and instructs an employee to clean it up. The employee gets distracted and does not do it. A couple of hours go by and the manager sees the peel again. He means to get on the employee for not picking up the peel, but he too gets distracted. Another couple of hours go by. Several other managers and employees see the peel, but do not remove it. You don't see the peel; slip and fall and break your neck. Negligence? Maybe - it'll depend on what the jury thinks. Was it reasonable for the store to leave the peel on its floor for 8 hours? Does the peel constitute a dangerous or hazardous condition? What about the customer - shouldn't he have seen and avoided the peel?

In my next blog, I'll address in more detail some of these issues and "affirmative defenses" So, the answer to the question is "yes" - if you fall you can sue, however, whether your lawsuit has any reasonable chance of success is another matter entirely.

Originally posted at InjuryBoard by Danny Feldman

If I slip or trip and fall and get hurt, what am I entitled to?

Danny Feldman — Thu, 02 Jul 2009 12:11:29 GMT

The short answer is that you are entitled to be put back into the position that you would have been in had the incident not occurred. Unfortunately, no matter how good your lawyer is or how sorry the premise owner is for your injuries, no one can turn back the hands of time. Accordingly, what happens (assuming you prevail) is that you will receive a sum of money, either through a settlement or verdict. The amount you receive is supposed to be an amount to reasonably compensate you for what you have been through.

Certain aspects of your damage claim will be fairly precise numbers. For example if you earn $500/week and you missed one week of work due to your injuries, you will have a $500 lost wage claim. Of course, defendants will argue that you should receive nothing if you had sick days or if the missed time is not as a result of doctor's orders. Further, if you are in the 1/3 tax bracket, defendant will want to subtract this amount as well.

You also will be entitled to receive the cost of your medical expenses incurred because of the wreck. Once again, it will be your burden to prove, often by very expensive ($1,000/hour or more) testimony from your doctor that your injuries, more likely than not where caused by the incident, that the medical treatment rendered was necessary to heal and cure you, and that the cost of the medical treatment was reasonable compared to the cost for similar treatment in your community. In addition, if you have health insurance, defendant will argue that all you are entitled to is the amount of your "out of pocket" co-pays and deductibles and the amount of your health insurer's subrogation claim. Forget that you have had $800/month deducted from your paycheck for the last 20 years to pay for this coverage.

The hardest to quantify area of damages generally is referred to as "pain and suffering" and mental anguish/emotional distress. It amazes me sometimes how people think that if you hurt someone and pay their out of pocket medical bills, that the injured person has been reasonably compensated. How about the inconvenience of going to numerous doctor visits; the stress of worrying about bills that aren't getting paid because you can't work; the pain you feel from the injury; the inability to do things that you like or need to do because of the injuries you suffered - for instance, not being able to go on along-planed vacation, not being able to exercise, sometimes not even being able to do the normal activities of daily living, like driving, dressing, cooking, cleaning etc.? These are the types of things that a pain and suffering award is meant to compensate. Just because it is harder to quantify monetarily should not mean that it is any less real and therefore simply should be forgotten.

Finally, in some rare cases, you might be entitled to punitive damages. Punitive damages are not designed to compensate you for what you have been through; rather they are designed to punish defendant for reprehensible conduct and to deter others from engaging in similar conduct. Punitive damages are rarely awarded, but in certain cases, they do have their place.

Originally posted at InjuryBoard by Danny Feldman

What Is A Motion For Summary Judgment?

Michael Roberts — Fri, 20 Jun 2008 14:10:07 GMT

The defendant in my lawsuit has filed a motion for summary judgment. What does that mean? Even though our constitution guarantees the right to trial by jury, the law permits a defendant to file a motion that argues the question of whether there is at least some evidence that supports the injured person’s claims. There are differing standards among the states, but frequently, the question is whether there is “substantial evidence” in support of the claim. Sometimes the question is whether there is “substantial evidence” in opposition to a defense, such as the statute of limitations.

Here is a simple example of how a motion for summary judgment works – say a store customer is hurt by a store’s negligence. If, however, the store proved through its employee’s testimony or affidavit that the accident happened more than two years before the customer filed suit, then the store might get a summary judgment order dismissing the case, if the accident occurred in a state like Alabama, where the statute of limitations for such cases is 2 years. If the evidence remains undisputed that the store is correct about the date, then it would win its motion for summary judgment, and the judge would be required to dismiss the case. If, however, the customer proved or provided evidence through his own affidavit or testimony that the accident occurred less than 2 years before suit was filed, then the motion should be denied, and a jury would later listen to both sides and decide who is right.

The losing party on the motion for summary judgment would have a right to appeal this decision, although, if the judge denies the motion and says a trial will be held, it may be necessary that the store wait until the trial is over and a verdict is reached by the jury before it can be appealed. On appeal, the appeals court would review the trial judge’s decision on the legal question of whether the evidence was sufficiently in dispute to make it necessary that a jury decide the question. If a trial judge had ruled for the customer, and dismissed the case, and the customer later won his appeal, then the case would be sent back down or “remanded” for a trial.

Originally posted at InjuryBoard by Michael Roberts

Teen threatens to sue for falling in sewer while texting

Danny Feldman — Mon, 13 Jul 2009 09:13:10 GMT

This is the kind of headline that tends to aggravate reasonable people. Apparently, a New York teen fell into a sewer while she was texting. See story at: http://www.msnbc.msn.com/id/31853449/ns/local_news-new_york_ny/?GT1=43001 City personnel had removed a manhole cover while they were flushing out the sewer. Fortunately, the teen suffered only scrapes and bruises. Her mother now is promising to sue.

I don't know about the law in New York, but in Alabama, this young lady will find it very difficult to get any lawyer to take her case because, quite frankly, it's a loser.

First, even assuming that the City was negligent, and it sounds like they were given that pedestrian traffic should have been diverted when the manhole cover was taken off, or failing that, they should have placed cones or warning signs around the uncovered hole to prevent someone from falling in - the teen cannot recover if she too was negligent, and her negligence was a proximate cause (but for cause) of the incident. In other words, even though the City was negligent, because the texting teen also was negligent, there will be no recovery. I simply do not believe that many plaintiff lawyers will conclude that they can convince 12 out of 12 jurors that being oblivious to your surroundings because you are busy texting (even something as important as where you are planning to "chill" later on) is not negligent conduct and that but for that conduct the incident would not have happened.

Can this teen sue? Sure. Is she likely to find a lawyer willing to work on this matter with almost no chance of recovery? Pretty unlikely. If she does sue, will the suit result in her receiving any money? At least in Alabama (and I suspect the same is true in New York as well), the chances are virtually nil.

Originally posted at InjuryBoard by Danny Feldman

What is an "Invitee"? When May an Injured Invitee Recovery for an Injury?

Michael Roberts — Sun, 05 Apr 2009 18:54:54 GMT

In many states, the rules that determine whether a property owner is liable for a slip and fall accident or premises liability injury are influenced by the purpose for which the injured person is present on the property. In Alabama, a visitor to property might be legally characterized as an “invitee,” a “licensee,” or a “trespasser.”

An invitee is one whose purpose involves a material benefit to the property owner. A typical example would be a customer in a store. Another example may be a neighbor who assists someone in trimming shrubbery on his or her property. A licensee is one who is on property with permission, but who does not provide a material benefit to the owner, such as a social guest. Of course, a trespasser is someone on property without permission.

Generally, an owner who is negligent in permitting or creating a dangerous condition on property, causing injury to the visitor, is liable, such as where a grocery store fails to clean up a slippery condition in a store aisle. The law requires a stronger showing where a licensee sues a landowner, generally that the landowner acts wantonly or recklessly, or creating hidden dangers through “active negligence.” Similarly, there are stricter standards applicable to injured person who falls into the category of a trespasser.

The rules are more lenient, however, when the trespasser is a child, and where the circumstances indicate the owner was aware the children’s presence on the property would be likely.

In summary, details can make a lot of difference in how successful this type of case can be. It is also important to be aware that the law can be different from state to state, depending upon these details.

Originally posted at InjuryBoard by Michael Roberts