Process of Premises Liability Cases Slip and Fall Accidents
Overview of Premises Liability Cases
INVESTIGATION
INITIAL INTERVIEW WITH CLIENT
The importance of the initial interview with the client cannot be stressed enough. A clear understanding of the applicable law is not possible without a thorough understanding of the facts and circumstances of a particular case. Moreover, from the first meeting with the client, we need to be able to look forward and envision the day this case comes to trial-we must anticipate what we will be able to prove and what are the problems that we may encounter. The following is a list of some information that must be ascertained at the time of the initial interview.
*What was the date and time of the incident?
*Where exactly did the incident occur?
i.e., At 100 Smith Street, in Stairway “A”, on the third stepdown from the 2nd story landing, between the second and first floors.
*What caused your client to become injured?
-Slipped on foreign matter located on a step
-Slipped on water coming from a leaking pipe in the bathroom
-Tripped on a pothole in a walkway
-Developed lead poisoning from ingestion of peeling paint
*Thorough and detailed description of the defective condition including measurement, shape, color, etc.
*What did your client see and feel immediately before the incident? What were your client’s observations immediately after the incident?
*What were the surrounding conditions?
-Weather
-Lighting
*Where there any witnesses and/or people present in the immediate area?
*Who, if anyone, came to your client’s aid? Were written reports made out regarding the incident?
*Who are the potential responsible parties?
-Landlord/superintendent
-Owner
-Repair company/elevator maintenance company
-Management company
*How long did the defective condition exist prior to the incident?
*Were complaints made about the defective condition prior to the incident? Who were they made to? Were they written or oral? Where and under what circumstances were the complaints made?
*Were attempts made to repair the defective condition prior to the incident?
*Were any photographs of the defective condition taken?
*Did your client have any discussions with any of the responsible parties regarding the incident? If so, what exactly was discussed?
*Where and when did your client seek medical attention? What did your client tell medical personnel was the cause of his or her injuries? What were his or her physical complaints?
*What has the course of medical treatment been? What is the prognosis for the future?
TYPE OF PREMISES CASES
Once a thorough client interview has been completed, it must now be determined as to what type of premises liability case exists. Although all premises cases share similar elements of proof, the applicable law may vary depending on the exact type of case. Moreover, we will need to do somewhat different investigation depending upon the nature of the case. The following is a list of some type of premises cases that may fit the facts of your incident.
*Slip and fall on foreign matter
*Slip and fall on ice
*Trip and fall on a defective condition i.e., broken stair, pothole, broken floor tile
*Fall due to inadequate lighting or broken handrail
*Fire /explosion cases
*Failure to have smoke alarms or defective fire escapes
*Defective or tipping stoves
*Elevator cases including elevator misleveling and defective doors
*Burn cases including those due to scalding water; defective boilers and
defective or improperly placed radiators/pipes
*Lead poisoning cases
*Premises security cases
*Injury due to defective windows/doors
*Failure to properly remove garbage
*Failure to repair a leaking condition
*Defective basement doors
*Defective revolving doors
*Falling objects from buildings
*Defective skylights
*Ceiling collapse
*Special use
*Failure to have functioning window guards
ESTABLISHING THE ELEMENTS OF PROOF
RESPONSIBLE PARTIES
Once we determine the type of premises case that is applicable to your facts, we must undertake to determine who the responsible parties are.
- Determine the owner of the building
*Request a records abstract search: This will provide information as to who the last owner of record is. (If the owner is a corporation, request the status of the corporation from the Secretary of State – Corporation Division.)
*Who does the client send their rent checks to? Who is listed as the owner on the lease?
*Is there a management agent?
- Repair and/or maintenance companies
*If the incident involves the negligent maintenance of something such as an elevator, we may find that the owner or superintendent of the building is willing to provide this information. As long as the case is not in suit and an answer interposed, we may freely speak to these individuals.
NOTICE
In almost every premises case, the success or failure of a case will depend upon the issue of notice. It is important that notice be established at the outset of the case.
ACTUAL NOTICE: If the plaintiff can show that the defendant knew about the condition, notice is easily shown.
*Did the client or others make oral or written complaints to the defendant or their representatives or agents? If so, make sure to have the details as to when this occurred, whom the notice was given to and what was said.
*If the complaint was in writing, does the client have a copy, and if not, we will request the document during discovery.
*Was there a response to the complaint? Did the defendant or its employees attempt a repair?
*depending on the type of defect, if the building is a Multiple Dwelling, we will make a request for a violation search for the subject building from the Department of Buildings. Actual notice can be established in this manner if the owner has been previously issued a violation for the same defect.
*Was the defect the subject of a prior landlord/tenant proceeding between the client and the defendant?
*Is the client aware of any prior accidents caused by the same defective condition?
CONSTRUCTIVE NOTICE: In the event that actual notice cannot be shown, constructive notice must be demonstrated. Simply put, constructive notice is demonstrated if a defective condition existed for such an unreasonably long period of time that in the exercise of due care, the defendants should have known of its existence.
*Constructive notice is more easily shown if the defective condition
is in a common area and is readily apparent to the public such as a broken stair in the lobby area of a building.
*In event that the defect is located within a private apartment, we must ascertain whether or not the defendant was in the apartment for another reason such as to collect rent or make a different repair and that the defective condition was readily observable.
*Establish through the client, or during the course of discovery, that the defendant conducted regular inspections and/or routinely maintained the area where the defective condition existed. Therefore, the defendants would have been aware of the condition.
STATUTORY VIOLATIONS: Once we have have evaluated the nature of the defective condition and the type of premises case, we need to determine whether the defendant committed any statutory violations.
*If the building is a Multiple Dwelling, reference is made to the Multiple Dwelling Law, as well as the Housing Maintenance Code, Volume 6, Title 27, Chapter 2 of the New York City Administrative Code. Other references include the Building Code, Volume 5, Title 27 of the New York City Administrative Code and the Rules of the City of New York.
DEFENSES: during the investigation stage, it is also necessary to assess any possible defenses to the action as well as weaknesses.
*What is your client’s comparative negligence, if any?
*Are there inconsistent histories in the hospital or medical records?
*Is the incident unreported and/or unwitnessed?
*Are there problems with notice?
Note that no case has perfect record keeping or documentation. What is important, however, is that we are prepared for a lack of support or contradictory information that exists.
DAMAGES: It is also necessary to gather all hospital and medical records at the earliest stage possible in order to assess the value of the case and check to see if the histories provided to the medical treaters are consistent with the facts and circumstances of the case as given by your client. If they are consistent, that strengthens the case; if they are not, there may be reasonable explanations (i.e. mistake, translation, lack of attention to detail in record keeping).
WITNESSES
EYEWITNESSES: during the investigation stage, it is necessary to ascertain whether anyone witnessed the accident. In the event that individuals did witness the occurrence, we must immediately get a witness statement from these individuals as to what they observed and whether or not they have given statements to other parties.
NOTICE: As stated before, notice is extremely important to establishing a premises case. In addition to the client, is there anyone else who can establish or confirm notice as to the defective condition? If yes, we must get a witness statement immediately.
EXPERTS: Depending on the type of premises case, you may need an expert witness to assess the defective condition
PHOTOGRAPHS/ACCIDENT REPORTS
*Photographs should be taken immediately of the defective condition, as they will confirm the client’s description and preserve a record of the condition, as it will likely be repaired or altered at the time of trial.
*Notice may also be established through a photograph.
*All accident reports, such as ambulance reports, police reports or reports from other city agencies should be requested immediately. These will be important in confirming the client’s version of the occurrence and/or the existence of a defective condition.
*Preservation of a defective condition: Whenever possible, efforts should be undertaken to preserve a defective condition i.e., if a stove is defective it should be preserved at least until such time as your expert can examine and evaluate it.
TOPICS OF SPECIAL INTEREST IN PREMISES CASES
OUT-OF-POSSESSION LANDLORD
While an out of possession landlord is generally not liable for conditions upon the land after the transfer of possession and control, where one contracts to repair or maintain the property, such out of possession landlord may be held liable for defects thereon. There is also liability for breach of a non-delegable duty. Examples of repair and maintenance include the following:
Examples:
*Landlord agrees to shovel the snow
*Landlord agrees to repair heaters
*Landlord responsible for maintaining parking lot
Remember: Where there is a non-delegable duty pursuant to law, the landlord will be held liable regardless of whether or not they are out of possession.
INDEPENDENT CONTRACTOR
A landlord who hires an independent contractor may be held liable for that contractor’s act if (1) the employer has assigned work to the independent contractor which the employer knew or had reason to know involved special dangers inherent in the work. (2) the plaintiff’s injuries were caused by a defect in the premises created by the independent contractor when the employer is under a duty to keep the premises safe or (3) the employer had negligently hired an incompetent contractor (see, Bryant v. Presbyterian Hosp., 304 NY 538.
Examples:
*Landlord held responsible where independent contractor failed to
provide sufficient illumination
*Landlord failed to adequately repair stairwell
*Landlord failed to fix the door-locking intercom system
*Landlord failed to fix a handrail
*Landlord failed to install window guards.
RECURRENT CONDITION:
A defendant who had actual knowledge of an ongoing and recurring dangerous condition can be charged with constructive notice of each specific recurrence.