Slip and Fall w/serious injury
Posted 28 February 2013 - 08:46 AM
My question here is, who should be at fault. The owner of the building, or the tenant. The tenant's business that my wife frequents, and my wife have a great relationship, and she would like this not to affect them. Since the accident we have been back there and have seen similar conditions. There is no sand down or "whitewash" from salt usage. Even if they had applied some material prior to the accident, there would be evidence of it, but there is not. We have also been told by the doc that this injury will now compromise her knee for the rest of her life.
So..any thoughts or advice would be much appreciated..Thanks!
Posted 28 February 2013 - 10:23 AM
There are no details in your post that would help someone make an intelligent assessment of whether there's any liability on the business establishment. Weather conditions were presumably noted by your wife (rain that froze on contact with concrete or other surface at whatever point). Whether she acted with due care according to conditions and but for X she'd not have fallen, we cannot know. Whether the business establishment was negligent in dealing with it we cannot know from here (though you indicate this was at night, you don't indicate how long weather conditions persisted, when the temperature dropped, etc., etc.).
"We have retained legal counsel."
So ... why are you here?
"My question here is, who should be at fault."
As this attorney should have said, this is for a court of law to decide should this find its way to a court (I don't know that it's worthy of a court action, even if you are without insurance). For all we know, your wife is almost entirely at fault, or to whatever degree along a given spectrum. We cannot know what the landlord or tenant's obligations are with regard to X-Y-Z, or what local law, if any, provides/requires.
"... she would like this not to affect them."
Personal feelings aren't something that should be a factor.
"Even if they had applied some material prior to the accident, there would be evidence of it..."
This is a conclusion of fact you aren't entitled to make.
Your wife should look to her counsel (and note that quite often a given attorney may be in it for a quick buck and she ought not take any hyperbole, etc. from the attorney as indicative of quality of case; naturally, she should look out for herself and view attorney info with a gimlet eye and keeping in mind what his/her motivations are).
Posted 28 February 2013 - 12:55 PM
My question here is, who should be at fault. The owner of the building, or the tenant.
There is no "should" when it comes to fault, and you're exclusion of your wife from the list of persons who may be liable is erroneous. It's also worth pointing that, sometimes, stuff happens and no one is "at fault."
Several possible issues exist here. First, did the condition result from someone's negligence? Second, who was in control of the portion of the property where the condition existed? Third, was the condition known or reasonably knowable to the person in control of the are where the condition existed? Fourth, if the answer to the prior question is yes, did the person in control take reasonable measures to warn of the dangerous condition? Fifth, did the injured person knowingly confront the risk or fail to take reasonable precautions for his/her own safety? Certainly, other issues may exist.
I've never heard the term "black ice" used outside of the context of driving. In fact, "black ice" isn't a real thing. Rather, the term simply refers to a thin coating of ice on a (usually black asphalt) roadway that is difficult for a driver to see because of the speeds at which cars are driven. I don't know how fast your wife was walking. However, if she was paying a reasonable degree of attention to where she was putting her feet (as opposed to something like reading a text message), it seems difficult to believe she couldn't have spotted a patch of ice (especially since you presumably live in an area with freezing temperatures and where icy conditions are not uncommon in the winter).
With that said, and looking at the other issues I mentioned above, it's not clear whether the property owner of the business establishment your wife was visiting had control over the parking lot. Typically, tenants do not have control over a common parking lot. One assumes that the ice didn't develop because of some act of negligence, so the question would be whether an appropriate person knew or had reason to know of th patch of ice. As I mentioned previously, since you apparently live in a cold weather area, it may be that ice is common and reasonably anticipated (the time of day and lighting conditions, which you didn't mention (except that you mentioned "night"), may be relevant). The next question would be whether any sort of remedial measures were required -- i.e., did the owner or tenant have a duty to salt the parking lot or post warning signs, etc. That will depend a great deal on the case law in your unidentified state. It may well be that your state's courts expect folks to be careful when walking in outdoor areas in the middle of winter. It will also depend on specific facts. For example, it may be that the ice had only formed moments before your wife fell, which would suggest the owner or tenant couldn't have done anything to prevent her fall.
The bottom line here is that no one is liable to your wife until and unless someone accepts liability or a judge or jury enters a judgment in her favor. Obviously, your wife is free to make claims with the property owner, the tenant, and the insurers of both. Maybe she'll get a settlement offer simply to avoid the cost of a lawsuit. Impossible to say from here.
my wife is not the only person that fell in that location that night.
Did the others fall before or after your wife fell? If before, did they notifiy the property owner or the business establishment your wife was visiting?
That your wife has "retained legal counsel" makes your post here somewhat puzzling, but your wife obviously, should follow the lawyer's advice. Perhaps the issues mentioned above can serve as discussion points for her next conversation with the lawyer.
Posted 28 February 2013 - 01:43 PM
The troubling aspect is that since the fall, which was reported, there is still a lack of material being applied to ensure, everyone is safe. Their response was simply be more careful. Be more careful in a poorly lit parking lot. I happen to come across this board, and figured i would see what others thought
Posted 28 February 2013 - 02:21 PM
Ultimately, this isn't relevant depending on other facts.
"Apparently it had been reported in the past, to no avail."
Past ... when? (Treat as rhetorical, as in no need to respond.)
"I guess we are feeling that due to the negligence of the property owner..."
Again, you are presuming negligence here and a given duty.
I also would not presume to base an outlook on the opinion of a single doctor early in the game so to speak (we won't presume this or any other doctor is looking to fund a new Mercedes, but that should be considered a possibility). Ultimately, a decision about maximum medical improvement and ultimate steps would be possibly years in the making.
Please note that once someone is put on notice and they KNOW a property owner or tenant is not addressing concerns, then you are in effect taking responsibility on yourself for what occurs in future similar weather conditions. Even, at its most extreme, this means carrying a bag of sand or other abrasive material (or wearing different footwear) should one insist upon visiting a given place under X weather conditions.
Posted 28 February 2013 - 03:10 PM
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