Premises Liability Claims: Plaintiff and Defense...

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Presenting a live 90-minute webinar with interactive Q&A

Premises Liability Claims:

Plaintiff and Defense Strategies

in Slip and Fall, Inadequate Security Cases Assessing Claims, Proving or Defending Liability,

Overcoming Evidentiary Challenges, and Maximizing or Mitigating Damages

Today’s faculty features:

THURSDAY, AUGUST 13, 2015

Richard D. Abrams, Partner, Mintzer Sarowitz Zeris Ledva & Meyers, Wilmington, Del.

David H. Fleisher, P.E., Fleisher Forensics, Ambler, Pa.

E. Michael Moran, Partner, Law & Moran, Attorneys at Law, Atlanta

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

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Strafford Continuing

Education Webinars

Premises Liability Claims: Plaintiff and Defense Strategies in Slip and Fall,

Inadequate Security Cases

Assessing Claims, Proving or Defending Liability,

Overcoming Evidentiary Challenges, and Maximizing or Mitigating Damages

Thursday, August 13, 2015

1:00 - 2:30 p.m.

Premises Liability Claims:

Plaintiff and Defense Strategies

in Slip and Fall, Inadequate

Security Cases

Presenter – E. Michael Moran, Esq.

DEFENDING PREMISES LIABILITY

CLAIMS©

Presented by: Richard D. Abrams, Esq. AV® - Preeminent Rated.

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95% of all claims for injuries on commercial

property are the result of hazards located on

the floor of the premises.

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Unintentional Injury Deaths – 118,0001

34.3 million people – about 1 out of 9 – sought medical attention for an injury2

©2013 Fleisher Forensics

Transport (vehicle accidents)3

Falls

Firearms

Drownings

Suffocation

Food & Breathing

Obstructions

Fires and Burns 1: NSC 2008, 2: NSC 2010 Summary of Injury Facts,

3: National Vital Statistics Reports 3/31/10

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DUTY OF OWNERS & OCCUPIERS

Generally speaking, Owners and Occupiers

of land have a duty to discover and correct

hazards of which they are aware, or would

be expected to discover through reasonable

inspections.

If known, the hazard must be reasonably

managed by adequately removing the hazard

or providing adequate warnings.

Once discovered, a reasonable amount of

time is permitted to correct the hazard 12

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DUTY OF INVITEES

Invitees have an affirmative obligation to

avoid hazards which are open and

obvious, where nothing is blocking the

hazard from view, provided the Owner –

Occupier has not, for their own benefit,

created a distraction intended or likely to

capture the attention of the invitee while

walking in the vicinity of the hazard.

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Related Factors – Slips, Trips & Falls

© Fleisher Forensics

© Fleisher Forensics 14

I. Assessing Cases

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Assessing Cases – Plaintiff ’s Perspective

Significant Injury?

Who Is The Plaintiff?

The Tougher the Case, the More Important the Plaintiff

Critical Part of Analysis in Negligent Security Case

Code Violation?

Defendant’s Knowledge of the Hazardous Condition?

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A. ASSESSING LIABILITY

DEFENDANT’S PERSPECTIVE

◦ Incident Report

◦ Store Surveillance

◦ Photographs

◦ Electronic or Paper Sweep Logs / Maintenance Reports

◦ ID of Employee and Non-Employee Witnesses

◦ Statements – Invitee, Employees, and Witness

◦ Anything in Client’s Possession Not Provided by Insurance Company or TPA

◦ Store Policies and Procedures – Both Written & Verbal re:

Timing of Regular Inspections

Training Staff Responsible For Floor Maintenance

Evidence Retention (Spoliation Issues)

◦ History of Hazard

First Occurrence

Similar Occurrences

Ongoing Problem

Prior Knowledge

Efforts to Correct, Make Safe, or Warn

Prior or Subsequent Claims or Injuries

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B. REVIEWING INSURANCE COVERAGE

Most Institutional Defendants Carry sufficient insurance, and usually have a self-

insured retention (“SIR”), which works like a deductible. This can vary from as

little as $25,000 to $5,000,000. Many Institutional Defendants with SIRs of

$100,000 or more have their own program for administering claims such as

captive 3rd party administrators.

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WHERE THERE ARE MULTIPLE DEFENDANTS, THE BIG

QUESTION IS WHOSE CGL COVERAGE IS TRIGGERED

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CAN YOU TENDER TO

CO-DEFENDANT’S CARRIER

To answer this question, the primary consideration is

which defendant had control of the area where the

injury occurred. To determine that, you will need a copy

of the Lease in effect on the date of the injury.

The most important provisions in the Lease are:

◦ Definition of “Common Area”

◦ Section describing Tenant’s responsibilities for maintaining the Common

Area, if any

◦ Section describing Landlord’s or Property Mgr.’s responsibilities for

maintaining the Common Area

◦ Amount of Insurance Tenant must carry at all times

◦ Whether Landlord (or others) must be named in the Declarations as

Additional Insureds

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WHO IS THE TARGET DEFENDANT

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TARGETS

Property Owner

Property Manager

Tenant

Vendor

Parties In Joint Control

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Property Owner

Typically responsible for all injuries occurring

on the Common Areas ◦ Slip & Falls on ice

◦ Trips on curbing

◦ Debris / Holes / Cracks

◦ Uneven Walking Surfaces

◦ Utility Access Covers

◦ ADA Access Issues

◦ Lack of Sufficient Traffic Controls in

Parking Lot

◦ Curb and Parking Lot Paint Issues –

Conspicuity

◦ Criminal Activity

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ASTM F1637 – Standard Practice for

Safe Walking Surfaces

ANSI A117.1 & ADAAG – Accessibility

Changes in Elevations –

Even to the extent possible © Fleisher Forensics 24

Adoption Dates and Governing Codes

What Model Code is not enacted in UCC?

Property Maintenance Code

Check local code and ordinances.

Locality may adopt for existing

residential and/or non-residential

structures and premises.

Less specificity than Building Code.

No provision for “Grandfathering”

Building Code requirements.


Determine the Adoption Dates and Governing Codes

When are Guards Required at Landing?

Example BOCA and ICC Building Codes

1975-1987 :Violation

1990-1993 :Compliant

1996-1999 :Violation

2000-2009 :Compliant


Property Manager

Responsibilities are typically the same as

Property Owner, with a few caveats

◦ Likely no Contract Between Tenant and Property Manager

◦ May Not be Additional Insured or Have Indemnity Obligations

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Tenant Responsible for injuries

.

◦ Occurring within the demised premises

◦ Occurring in areas outside of the demised premises which Tenant has

maintained, or over which Tenant exercised some objective form of

control

◦ Occurring in areas beyond the demised premises by virtue of provisions

in the Lease creating Tenant obligations typically handled by Landlord

(i.e. trash removal, supplemental snow removal, maintenance of

landscaping, etc.)

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Vendor Injuries caused by Vendors can come in many

forms

◦ Falls caused by incorrect cleaning procedures (Overnight Crews)

◦ Improperly stocked shelves (Product stacked too high or not balanced)

◦ Improper maintenance of mechanical systems

◦ Falls caused by hazards created by Vendor in course of performing job

◦ Injuries caused by Vendor negligence (Negligent conduct)

◦ Slip & Falls caused by improper or delayed plowing of Common Areas

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Vendor

Considerations

When Co-Def. is a Vendor to your Client ◦ Privity of Contract and Remedies

◦ Indemnity obligation

◦ Named Additional Insured

When Co-Def. is a Vendor to another Co-Def. ◦ No Contractual Remedies (unless 3rd party beneficiary – hard to prove)

◦ Unlikely your Client is an Additional Insured

◦ Where Client is the Tenant and injury occurred on Common Area,

Client’s insurance company will likely be required to defend Client, and

possibly the Landlord, based upon language in the Lease

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Parties In Joint Control

Tricky situation because terms in Lease may be at odds with common law.

◦ Fall occurs on sidewalk outside demised premises

◦ Landlord responsible via Lease for Common Area Maintenance and Snow

◦ Tenant regularly puts salt on sidewalk and complains to the Landlord that Landlord’s snow removal company does a bad job on the sidewalks

◦ Tenant’s Invitee slips on icy spot on sidewalk Tenant failed to salt

◦ Lease says Tenant not responsible

◦ Common Law says Tenant is responsible as consequence of exercising control

Who’s insurance is answerable for defense and indemnity

What is your role as defense counsel

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Proving Liability – Plaintiff ’s Perspective

What Is the Hazardous Condition?

◦ Prior Crime?

◦ Dangerous Person on Property?

◦ No Background Check?

◦ Poor Lighting?

◦ Code Violation?

Defendant’s Knowledge of the Hazardous

Condition

◦ Notice of Prior Crime?

◦ Failure to Comply With Code?

◦ Failure to Follow Internal Policies?

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II. Defending Against Liability

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A. Theories of Premises Liability

Negligence

◦ Conduct of Employees on Property

◦ False Imprisonment/Bad Stop by Security

Biggest problem is failing to attend the criminal trial

Attractive Nuisance

Dog Bite Cases

Strict Liability

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Negligence .

Hazards on Property vs.

Conduct of Client and Employees .

Waiter spills bowl of hot soup on hotel guest.

Waiter was a hazard on property, which defendant should have been

expected to discover and correct (incorrect)

Plaintiff attorneys frequently make this mistake

This is not premises liability

This is straight negligence

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B. Challenging Causation

Affirmative Defenses (Commercial) ◦ Notice

◦ Open and Obvious d

Premises Guest Statute (Residential) No person who enters onto private residential or farm

premises owned or occupied by another person, either as a guest without payment or as a trespasser, shall have a cause of action against the owner or occupier of such premises for any injuries or damages sustained by such person while on the premises unless such accident was intentional on the part of the owner or occupier or was caused by the wilful or wanton disregard of the rights of others. Delaware Code - Section 1501: Liability of Owners or Occupiers of Land for Injury to

Guests or Trespassers

◦ Exceptions Consideration

Apartments

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Notice

Defendant Knew

“ . . . hazards of which the owner or occupier was aware or would have

discovered through reasonable inspections.”

What is Notice?

◦ Actual Notice - Actual means you discovered it, were told about it, or you created the hazard and are therefore charged with knowledge.

◦ Implied Notice - Where known circumstances are such that you should be able to infer and foresee the consequences of taking no action. Grape Display

Rain / Bad Weather

Product sitting in display containing crushed ice

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Notice Defendant Should Have Known

Means you would have discovered it through reasonable inspections and managed it properly

Nobody really knows what “Reasonable Inspection” means.

Juries can recognize “Unreasonable Inspections”

◦ No Inspection Whatsoever

◦ Client failed to follow and adhere to its own inspection schedule/procedures

What is the proper interval between inspections?

◦ Usually no more than 60 minutes depending on the area/premises/size/practicality

◦ 30-60 adequate for most situations

◦ Some circumstances require more frequent inspections

Who should conduct the inspection

◦ Managers vs. Porters or Maintenance Workers

◦ Maintaining records of inspections – Double edged sword

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Open & Obvious

Plaintiff Should Have Seen

When a hazard is open and obvious, the Owner or Occupier of land has no duty to warn of the hazard.

.

.Invitees must also exercise reasonable care while walking in a store. It

is negligent for an invitee not to see what is plainly visible when there is nothing to obscure his or her view. A person is under the affirmative obligation to watch where he or she is walking, to exercise the sense of sight in a careful and intelligent manner to observe what a reasonable person would see. Walker v. ShopRite 864 A.2d 929, 2004 WL 3023089 (Del. Supr.)

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Open and Obvious

DISTRACTION – Dispositive or Contributory?

.If the invitee’s attention was drawn by displays or distractions benefiting the Owner or Occupier, or observed the hazard, but it was reasonable to expect the invitee not to avoid it, it is possible the invitee may be excused, despite the hazard being open and obvious.

.However, if the distraction was self-imposed, i.e. looking for a child, walking quickly to the bathroom, answering an important cell phone call, distraction is not a viable counter to the open and obvious defense.

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Restatement (Second) Of Torts §343A

Restatement (Second) of Torts § 343A (1)

Under the Restatement, where the Landowner

should have anticipated the harm was foreseeable,

despite its openness and obviousness, the

Landowner’s duty toward plaintiff does not vanish.

Rather, the openness and obviousness of the

danger goes to plaintiff ’s comparative negligence.

(But maybe not . . . )

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Restatement (Second) Of Torts §343A

Plaintiff attorneys commonly argue §343A and interpretive case law establish that a Landowner always owes an Invitee a duty of care, regardless of the Invitee’s knowledge, conduct, or existing circumstances. It is argued that Plaintiff ’s awareness of the danger is never relevant in a duty analysis. §343A Comment (f) contains demonstrative illustrations.

In each illustration, the Invitee is made vulnerable by either:

◦ (a) being distracted (looking away from condition - goods on display);

◦ (b) being forgetful (failing to remember the existence of the condition - “miss[ing] her step” when getting down off of a high stool);

◦ (c) having obstructed vision (“arms full of bundles [blocking] her vision” of condition); and,

◦ (d) dire consequences (“forgo[ing] employment” if condition is avoided).

Restatement Of Torts §343A Comment (f) may support limiting the duty of an Owner or Occupier of land. Each of comment (f)’s four illustrations depict invitees in need of protection, despite the openness and obviousness of the condition. You have O&O + something more.

What if the Invitee is not vulnerable and completely focused on the hazard? (Traversing icy parking lot to look at carpet samples)

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Open & Obvious

Questions to ask at deposition Very important you use a script and keep repeating the

questions until you get the correct answer .

◦ Had you looked at the floor, would you have been able to see the floor?

◦ Had you seen the floor, would you have been able to see the condition

of the floor?

◦ Had you been able to see the condition of the floor, would you have

been able to see what you believe caused you to fall?

◦ Had you been able to see what you believe caused you to fall, would

you have done anything differently?

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Questions – Open & Obvious

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Deposition Transcript

Used in Trial Last Summer

Defense Verdict – 7/20/14 –

Moore v. ShopRite

Questions – Open & Obvious

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C. Working With Experts

Safety Experts Opinions Are Vulnerable ◦ Too many variables at play to produce meaningful results

◦ No scientific theory will ever explain why this particular plaintiff fell.

◦ Safety Expert Opinions invite juror speculation (e.g. .175 COF = 3 out

of 4 test subjects will slip – doesn’t translate to real world experience)

Consultant vs. Trial Expert ◦ Safety experts are very useful as consultants

◦ Can assist with deconstructing plaintiff ’s expert’s report/opinions

◦ Defense counsel should be wary of identifying experts for trial

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Two Versions of this Incident:

1. ER Report: Tripped over a blood cuff machine

2. Witnesses: Slipped on trail of water from food cart

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Slip


Trip

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Heel Slip


Toe Slip

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Measuring Slip Resistance

Experts use different measuring

instruments “Tribometers”

Some experts use a “0.5” as a

“Pass”

Different “Tribometers” get

different measurements.


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D. Evidentiary Challenges

Spoliation ◦ Comes up frequently due to failure to preserve evidence

Did not save the object, product, or thing which caused injury

Insufficient video – No video of last alleged inspection

Last Inspection was 45 minutes prior to incident according to paper or electronic inspection record, but video only goes back 30 minutes prior to incident – Court may refuse to allow client to argue there was a recent inspection

No incident report or photos documenting the floor was clear

Mere Negligence by Client will not amount to spoliation

Insufficient Investigation by Client ◦ No photos, incident report, witness statements or contact info for

persons with knowledge

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III. Calculating Damages

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Calculating Damages – Plaintiff ’s Perspective

What Is It That the Plaintiff Has Lost?

Lost Wages vs. Loss of Enjoyment of

Career

Lost Ability to Labor

Use An Economist?

Some Injuries Speak for Themselves

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Considerations – Def. Perspective

Medicare, Workers Comp. and other liens .

Some jurisdictions do not apply the

collateral source rule to Medicare and

only allow plaintiff to recover amounts

actually paid by Medicare Stayton v. Delaware Health

Corp., 2015 WL 3654325 (Del. June 12, 2015)

Remember liens are usually negotiated

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Negotiating With Insurance Adjustors

Make Sure Adjustor Is Fully Informed

Understand the Insurance Coverage

Give Adjustor Sufficient Time to Evaluate

Case

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IV. Negotiating With Adjusters

Two biggest barriers to settlement/ADR

◦ Lack of Information

◦ Lack of Time – Insufficient preparation by counsel

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Lack of Information

Information – Insurance companies

have lengthy claims evaluation

procedures they must complete in

order to obtain settlement authority.

They need the information required

to document their files accordingly

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Lack Of Time Time – Insurance Companies typically need

at least thirty or forty-five days to evaluate a claim, especially if it is large

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Thank You

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Richard D. Abrams

[email protected]

David H. Fleisher

[email protected]

E. Michael Moran

[email protected]

QUESTIONS?

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