In a premises liability case, the first thing you have to establish is the owner of the premises. The owner can be an occupant or lease, leaser or owner that knew or should have known of the defect. It’s called, “Notice” and there are two types. Actual notice is where somebody tells you, “Hey, I spilled something on aisle 3” and the store doesn’t clean it up. The next person comes along and falls, that’s an actual notice.
Constructive notice is with a reasonable inspection program they should have known. For example, take Raleigh’s, Safeway, Bel-Air – all the big grocery chains; if they don’t bother to inspect and/or sweep their aisles, they can’t hide behind the defense and say, “We didn’t know there was debris in aisle 3”. They must have a reasonable inspection program. If they fail, then that’s called constructive notice.
Once you establish notice, the defect has to be an unreasonably dangerous condition. Everything in the world is at least a little bit dangerous. You take my reading glasses. If I poke you in the eye with them, they’re dangerous. If I use them in a reasonable way, they’re not dangerous. So, it has to be unreasonably dangerous.
On trip and fall cases where there is a discrepancy between one slab in the sidewalk and the next, there’s a height differential, the courts have said that anything under one inch is considered a trivial defect. So it’ll have to be more than an inch on those. It has to be unreasonably dangerous and then it has to cause your injury.
How Soon After the Injury Should I Contact An Attorney?
The sooner the better! Evidence tends to disappear. Skid marks on the roadway disappear, witnesses move, die or forget. Video cameras in stores, security cameras get taped over and/or disposed of. The sooner we learn of an accident the sooner we can initiate our investigation and gather that evidence.
We can also advise clients on medical treatment; the sooner they get in to get medical treatment the better. The longer they wait, the harder it is to prove that it was caused by the accident.
What Are the Benefits of Getting an Attorney? What Would I be Entitled to if I Win the Case?
The benefit to getting an attorney is that you’re going to get more money in your settlement than if you try to do it by yourself. Clients don’t know the value of their cases, they don’t know what to ask for, they don’t know what they’re entitled to recover, and insurance companies certainly are not going to educate them. The bottom line is the client sees more money with an attorney. The client is entitled to past and future medical bills. The future medical bills have to be reasonably certain to occur.
Quite often I hear client say, “Well, what if I need a surgery in the future? What if I need physical therapy?” As soon as you say what if, you don’t get paid for it. A doctor would have to say it’s reasonably certain that you will need this surgery in the future and then we can recover for it. Clients are entitled to past and future wage loss. If you’ve missed a month of work and you make five grand a month, you’re entitled to $5,000. We have to prove future wage loss and we would normally have testimony from the client and/or his or her employer saying, “Yes, had she not been injured she would have continued working for us and there would have been work for her”.
If a person’s unemployed, and we see this frequently, they’re unemployed either due to an injury or because of the recession, or just because of life; they’re unemployed and they’re looking for a job. They’re getting ready to move back into the job market and then the accident happens. They’re still entitled to recover wage loss even if they’re not working as long as we can prove they would have been working. It’s the value of working time lost. Another thing clients don’t quite appreciate is that on larger injuries, it may affect the work life expectancy of a person. If you take somebody who does physical work, let’s say a carpenter, there are statistics that will show at what age the average carpenter retires.
If there’s a catastrophic injury, even though the person’s back to work now, he or she may not achieve their normal retirement age; they may not make it to that age. There is a reduction in work life. So, if a person works three years less than they would have, they’re entitled to three years times their annual wage. They’re also entitled to benefits, if their job paid them benefits, and we calculate that into the wage loss. It’s not just what they got in their paycheck that counts, but also the benefits they received, medical insurance, retirement, 401k etc.
For more information on Premises Liability Claims, a free initial consultation is your best next step. Get the information and legal answers you’re seeking by calling (916) 565-2100 today.