Posted On: November 16, 2006

Proving Fault in Slip and Fall Accidents

These guidelines will help you determine who is responsible if you slip or trip and fall on someone else's property.

Many thousands of people are injured each year -- some very seriously -- when they slip or trip and fall on a dangerous floor, a flight of stairs, or a rough patch of ground. Sometimes the owner of the property where the accident occurred is responsible for the accident, sometimes not.

If you have been injured in this way, first consider that it is a normal part of living for things to fall on or to drip onto a floor or the ground, and for smooth surfaces to become uneven. Also, some things put in the ground -- drainage grates, for example -- serve a useful purpose there. Therefore, someone who owns or occupies property cannot always be held responsible for immediately picking up or cleaning every slippery substance on a floor. Nor is a property owner always responsible for someone slipping or tripping on something that an ordinary person should expect to find there or should see and avoid. We all have an obligation to watch where we're going.

However, property owners do need to be careful in keeping up their property. While there is no precise way to determine when someone else is legally responsible for something on which you slip or trip, cases turn on whether the property owner acted carefully so that slipping or tripping was not likely to happen -- and whether you were careless in not seeing or avoiding the thing you fell on. Here are some general rules to help you decide whether someone else was at fault for your slip or trip and fall injury.
Determining Liability

To be legally responsible for the injuries you suffered from slipping or tripping and falling on someone else's property, one of the following must be true:

* The owner of the premises or an employee must have caused the spill, worn, or torn spot, or other slippery or dangerous surface or item, to be underfoot.
* The owner of the premises or an employee must have known of the dangerous surface but done nothing about it.
* The owner of the premises or an employee should have known of the dangerous surface because a "reasonable" person taking care of the property would have discovered and removed or repaired it.

The third situation is the most common, but is also less clear-cut than the first two because of those pesky words "should have known." Liability in these cases is often decided by common sense. Judges and juries determine whether the owner or occupier of property was careful by deciding if the steps the owner or occupier took to keep the property safe were reasonable.
What Is "Reasonable"?

In determining a property owner's "reasonableness," the law concentrates on whether the owner makes regular and thorough efforts to keep the property safe and clean. Here are some initial questions you can ask to determine whether a property or business owner may be liable for your slip or trip and fall injuries:

* If you tripped over a torn, broken, or bulging area of carpet, floor, or ground, or slipped on a wet or loose area, was the dangerous spot been there long enough so that the owner should have known about it?
* Does the property owner have a regular procedure for examining and cleaning or repairing the premises? If so, what proof does the owner have of this regular maintenance?
* If you tripped over or slipped on an object someone had placed or left on or in the floor or ground, was there a legitimate reason for the object to be there?

* If there once had been a good reason for the object to be there but that reason no longer exists, could the object have been removed or covered or otherwise made safe?
* Was there a safer place the object could have been located, or could it have been placed in a safer manner, without much greater inconvenience or expense to the property owner or operator?
* Could a simple barrier have been created or a warning been given to prevent people from slipping or tripping?
* Did poor or broken lighting contribute to the accident?

If the answers to one or more of these questions come out in your favor, you may have a good claim for compensation. However, you must still think about whether your own carelessness contributed in any significant way to your accident.
Your Own Carelessness

In almost every slip or trip and fall case, you must decide whether your carelessness contributed to the accident. The rules of "comparative negligence" help measure your own reasonableness in going where you did, in the way you did, just before the accident happened. There are some questions you should ask yourself about your own conduct -- an insurance adjuster will almost certainly ask them after you file your claim.

* Did you have a legitimate reason -- a reason the owner should have anticipated -- for being where the dangerous area was?
* Would a careful person have noticed the dangerous spot and avoided it, or walked carefully enough not to slip or trip?
* Were there any warnings that the spot might be dangerous?
* Were you doing anything that distracted you from paying attention to where you were going, or were you running, jumping, or fooling around in a way that made falling more likely?

You don't have to "prove" to an insurance adjuster that you were careful. But think about what you were doing and describe it clearly so that an insurance adjuster will understand that you were not careless.

To learn more about how your carelessness will affect the outcome of your claim, see "How Your Own Carelessness Affects Your Claim" inGeneral Rules for Proving Fault in Accidents.

Posted On: November 10, 2006

Proving Fault for Defective Product Injuries

If you've been injured by a dangerous consumer product, it's usually not hard to recover compensation for your injuries.

Defective or dangerous products are the cause of many thousands of injuries every year. The set of laws that covers who is responsible for defective and dangerous products -- called "product liability" -- is different from ordinary injury liability law, and sometimes makes it easier for an injured person to recover damages.
Strict Liability Defined

Ordinarily, to hold someone liable for your injuries, you must show that they were careless -- that is, negligent -- and that their carelessness led to the accident.

With products sold to the general public, however, it would be extremely difficult and prohibitively expensive for one individual to have to show how and when a manufacturer was careless (negligent, in legal terms) in making a particular product. Neither can the consumer be expected to prove whether the seller or renter of the product had a proper system for checking for manufacturer's defects, or whether the seller was the cause of the defect after receiving the product from the maker. Nor, finally, can a consumer be expected to check each product before using it to see if it is defective or dangerous.

For all these reasons, the law has developed a set of rules known as "strict liability" that allows a person injured by a defective or unexpectedly dangerous product to recover compensation from the maker or seller of the product -- without showing that the manufacturer or seller was actually negligent. In short, if you have been injured by a consumer product, you are entitled to compensation from the manufacturer or from the business that sold or rented the product directly to you.
Who Can Be Sued

You can always go after a manufacturer for a defective or dangerous product, but you can't always sue the seller of such a product. Strict liability operates against a non-manufacturer who sold or rented a product only if it is in the business of regularly selling or renting those particular kinds of products. In other words, if you bought something at a flea market stall, garage sale, or thrift store that sells all kinds of things but not any one type of item on a regular basis, strict liability may not apply.
Rules of Strict Liability

Regardless of what steps a manufacturer or seller says it takes in making and handling a consumer product, you can make a strict liability claim -- without showing any carelessness on the part of the manufacturer or seller -- if all three of the following conditions exist:

1. The product had an "unreasonably dangerous" defect that injured you as a user or consumer of the product. The defect can come into existence either in the design of the product, during manufacture, or during handling or shipment.
2. The defect caused an injury while the product was being used in a way that it was intended to be used.
3. The product had not been substantially changed from the condition in which it was originally sold. "Substantially" means in a way that affects how the product performs.

Time Limits on Lawsuits

Most states have laws limiting how long after a product has been sold to the public the manufacturer or seller can be held liable under strict liability rules. The limits are usually from six to 12 years after the manufacturer initially sold the product. So, in a strict liability claim, you might need to determine how old the product is that injured you.
If You Were Aware of the Defect

Manufacturers and sellers have a defense to claims of strict liability that may be particularly important if you have owned the product for a while: You may not be able to claim strict liability against the manufacturer or seller if you knew about the defect but continued to use the product. If it appears -- either from the condition of the product (which the manufacturer's or seller's insurance company will have a right to examine) or from your description of your use of the product -- that you were aware of the defect before the accident but used the product anyway, you may have given up your right to claim injury damages.

Posted On: November 1, 2006

Preserve Evidence of Fault and Damages

Act quickly to protect evidence and find witnesses who can help you prove your case to an insurance company.

The first few days immediately following an accident are often the most important for finding and preserving evidence of what happened -- and documenting your injuries. You should take the following steps as soon as you are able.
Return to the Scene

If an accident occurred somewhere other than in your home, return to the scene as soon as possible to locate any evidence and photograph any conditions you believe may have caused or contributed to the accident. You may be amazed to find something you were not aware of when the accident occurred but which may help explain what happened: a worn or torn spot on which you fell, a traffic light that isn't working. And while looking around, you may also find someone who saw what happened, or who knows of other accidents that happened in the same spot.

Take photographs of the accident scene from a number of different angles -- particularly your view of things right before the accident -- to keep a good picture of it in your mind and to give to the insurance company later on to indicate how well prepared you are to get the settlement you deserve. Photograph the scene at the same time of day as your accident occurred, and for vehicle accidents, the same day of the week, to show the appropriate amount of traffic.
Protect Physical Evidence

Who was at fault for an accident is sometimes shown by a piece of "physical" evidence -- something you can see or touch, as opposed to a description of what happened. Examples include a broken stair that caused a fall, the dent in a car showing where it was hit, or an overhanging branch that blocked visibility on a bike path.

In addition, physical evidence can help prove the extent of an injury: Damage to the car can demonstrate how hard a collision was, and torn or bloodied clothing can show your physical injuries dramatically. Try to preserve any physical evidence exactly as it was at the accident. If you can't preserve the actual object, take photographs of it. You can later show your evidence to an insurance company as proof of what happened.
Taking Good Photographs

Here are some tips for preserving evidence with photographs:

* Regular photos are better than Polaroids. They usually show greater detail and more accurate light conditions.
* Take a number of photos from different angles so that you can later pick out the ones that show most clearly whatever it is you want to highlight to the insurance company.
* Take the photos as soon as possible so that they will accurately represent the condition of the evidence immediately after the accident.
* To establish the date the photos were taken, ask a friend to both watch you take the pictures and to write a short note stating that he or she observed you taking the pictures on that date. Also, get the film developed immediately and make sure the photo shop indicates the date on the back of the prints, or at least on your receipt.

Locate Witnesses

A witness to an accident can be immensely valuable to you in making your case to an insurance company. Witnesses may be able to describe things about an accident that confirm what you believe happened, backing up your story. And they may provide you with information you were not aware of but which shows how the other person was at fault. Even a witness who did not actually see the accident may have seen you soon after you were injured and can confirm that you were in pain or discomfort. Or, a witness may have heard a statement made by another person involved in the accident indicating that someone other than you was at fault.

However, time is of the essence. If witnesses are not contacted and their information confirmed fairly soon after the accident, what they have to say may be lost. People's memories fade quickly, and soon their recollections may become so fuzzy that they are no longer useful. Also, a witness might no longer be around if you wait too long; people move frequently.
Document Your Injuries

The best ways to preserve evidence of your injuries are by promptly reporting all of them to a doctor or other medical provider, and by photographing any visible marks, cuts, bruises, or swelling, including any casts, splints, bandages, or other devices.

Without an early medical record of all your injuries, and photos if possible, it will be more difficult to later convince an insurance company that you were injured in the ways and to the degree you claim you were. Visible injuries heal and will not look as serious later, and failing to seek immediate treatment can lead an insurance company to believe that your injuries were not so serious, or even that you invented or exaggerated them after the accident.

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