Topic: Filing a Premises Liability Claim
If You Were Injured in a Slip and Fall, or Other Type of Accident on Someone Else’s Property Due to Their Negligence, Our Lawyers Can Help
If you have been injured on property that belongs to someone else, you may have a premises liability claim or negligent activity claim. Throughout our firm’s 30+ year history, our Dallas slip and fall attorneys have represented hundreds of people who were injured at a work site, office building, apartment complex, department store, grocery store, convenience store, restaurant, or other retail establishment.
Remember: The law is not on your side. The legislature and courts across the State of Texas have made it very difficult for slip and fall and trip and fall victims to recover damages. You must generally demonstrate the at-fault party knew or should have known of a dangerous condition and that they owed you a legal duty to warn or make the condition safe based on your status on the premises.
Our personal injury firm has the knowledge, skills, and experience to properly develop your case, and to establish the facts necessary to obtain a recovery. In fact, our firm attorney Joseph Morrison served as counsel of record in what VerdictSearch determined was the 5th largest premises liability verdict of 2012 in the entire State of Texas. Feel free to scroll through the topics below or feel free to click if you would like to immediately be directed to a specific topic.
Q: What is the difference between a premises liability case and a negligent activity case?
A: When you’re injured on someone’s property, whether it’s a local park, government building, private or public business or just another person’s home, how and where the injury occurred depends on which body of law governs your case. If the injury occurs at the same time as the negligent act or omission you have a negligent activity case. That’s significant because proving the defendant breached a duty of safety is less difficult with regard to negligent activity cases. All you have to prove is:
1) The defendant owed a general “duty” of care (as measured by what a reasonably prudent ordinary person or business would do (or not do) under the same or similar circumstances);
2) The defendant “breached” that duty;
3) The breach “caused” your injury (as measured by the “but for” test and the “foreseeability” test); and
4) You suffered and sustained “damages” (as the law delineates and defines).
An Example: You are standing in a grocery store looking at merchandise when an employee – obviously not paying attention – accidentally pushes a chain of shopping carts striking you in the back and knocking you down. Here, the injury occurred at the same time as the negligent act. To establish the duty of care was breached you must simply prove that a reasonably prudent store employee would have paid attention while pushing a long chain of shopping carts. You can argue common sense, store training policies and procedures, and attempt to get the employee to admit he should have been paying attention.
Remember: If the injury does not occur at the same time as the negligent act or omission you have a premises liability case.
Q: If you slipped and fell at a grocery store due to water on the ground can you win a premises liability case?
A: Maybe. Your right to recover damages in a premises liability case is influenced by several factors. First, you have to establish you had a legal right to be at the grocery store – your status will impact the duties owed to you. Next, you have to establish the water on the ground constituted a dangerous condition. Third, if it was a dangerous condition you have to establish the grocery store (or one or more of its employees) knew of the water on the ground OR should have known of the water on the ground. Finally, you will have to establish the fall was the proximate cause of the injuries you sustained.
Remember: The grocery store will likely argue you that you were also responsible (comparatively negligent) for not avoiding the water, i.e. that the dangerous condition was open and obvious. You can still recover damages as long as you were not more than 50% responsible for the fall. Your percentage of fault impacts your recovery.
How We Can Help You: We know premises liability cases. We’ve handled hundreds and hundreds of them over the years. Our firm can assist you in gathering the evidence needed for your case. Our injury law firm has its own private investigator to interview potential witnesses to your fall, attempt to locate potential witnesses to your fall, secure fact affidavits demonstrating actual or constructive knowledge of the dangerous condition, and to take photographs and video footage of the scene as well as any necessary surveillance footage of the store or its employees.
Q: Are witnesses important in a premises liability case?
A: Absolutely. Witnesses can sometimes make or break a slip and fall or trip and fall case. It is imperative that you retain information on all possible witnesses as they can often be utilized to demonstrate the store knew of a dangerous condition or should have discovered a dangerous condition.
Remember: Even if no one witnessed your fall you can still establish facts necessary to support and win your case. In the vast majority of cases your own testimony alone can establish the facts necessary to support your claim for damages.
Q: Does it matter who was around me when I fell?
A: It might. For example, if two employees were in close proximity to the water on the ground in the above example it would be easier to argue the employees knew of the water on the ground or should have discovered the water on the ground (and made it safe). Think back to your own fall. Were any employees stationed near you when you fell? Was the area where you fell located in a main aisle or section of the store? Was there anything located near where you fell suggesting one or more employee(s) had been in the area immediately before your fall?
An Example: Our Dallas slip and fall attorneys represented a woman who was injured at Wal-Mart. She slipped and fell in a puddle of water that leaked in from the ceiling. We argued the area where she fell was in eyesight view of three employees based on evidence we developed.
Another Example: We represented a man who slipped and fell at a Kroger grocery store due to water on the ground in one of the aisles. We were able to argue that a pallet with products to be stocked nearby the location of the water demonstrated a store employee had been in the aisle prior to our client’s fall – and should have discovered the dangerous condition.
Q: Does it matter what the employee(s) said after the fall?
A: It might. For example, if the store manager acknowledged that he or she had told one or more employee(s) to clean up a spill prior to you falling in it that would obviously suggest that the store had actual knowledge of the dangerous condition. Sometimes statements can establish constructive notice – meaning that the store should have discovered the dangerous condition. For example, if you slipped and fell 5 feet from a cooler and an employee acknowledged the cooler always leaked you could suggest the water leaked from the cooler long enough to travel that distance and an employee should have discovered it sooner.
Remember: Constructive notice can be established in a multitude of ways. For example, if the puddle you slipped in had multiple “tracks” through it you could argue that the puddle existed long enough for multiple people to encounter it.
An example: We previously discussed the woman we represented who was injured at Wal-Mart when she slipped and fell in a puddle of water that leaked in from the ceiling. We demonstrated multiple employees had a view of the aisle in question. We still, however, had to establish that the puddle of water in question existed long enough that the store employees should have discovered it. We argued that the size of the puddle (size of a medium pizza) coupled with the slow leak (drips every 3-4 seconds) necessarily meant the puddle accumulated over a long period of time.
Q: Who are potential responsible parties in a premises liability case?
A: Many potential parties could be responsible for your injuries. These parties could differ based on the type of establishment you were injured at. For example:
- Retail Store: The owner of the building and the possessor of the building are both potential parties.
- Government Building: The city, county, an agency, or the State of Texas may be potential parties. It is important to remember governmental units and entities often have strict requirements for filing a Notice of Claim within a specified time period. If you fail to meet the notice requirements your claim for damages might be barred.
- Apartment Complex: The owner of the apartment complex as well as a property management company may be potential parties.
- Residence: The owner(s) of the home or tenants may be potential parties. It is important to remember that most homeowners have insurance to cover these losses.
In short, the owner of the premises, manager of the premises, and any possessor of the premises could be liable for your injuries.
How We Can Help You: Our Dallas premises liability attorneys have access to extensive databases we utilize to identify the owner(s) and/or manager(s) of the premises. We use this information to quickly send out spoliation of evidence letters to potential parties directing them to preserve all evidence that could be helpful to your case. For example, many stores have surveillance cameras that might have captured your fall. It is of critical importance that you retain legal counsel quickly as this video footage is often recorded over after a specified period of time.
Q: Does it matter what you were doing at the premises at the time you got injured?
A: Absolutely. Your legal status on the property in question dictates the duties owed to you by the potential responsible parties. In addition, it also dictates whether comparative negligence could prevent you from recovering damages.
Q: Who is an Invitee?
A: An Invitee is an “invited guest.” You’re an invitee when you’re on a property, premises or business by invitation. The invitation can either be direct (in other words “express”) or “implied,” (like when you’re expected to enter stores, restaurants and other establishments open to the public for the purpose of shopping, eating or entertainment.)
An Example: You go to Best Buy to buy a television. While in the store you slip and fall and injure yourself. You would be classified as an “Invitee” because you were on the premises at the implied invitation of the store to purchase products. Best Buy is held open to the public and your presence was mutually beneficial to Best Buy.
Another Example: If you went into a gas station simply to use the restroom – and didn’t intend on purchasing anything – you would not be classified as an Invitee.
Q: What duties are owed to an Invitee?
A: The owner (or whoever is in control of the premises) owes you, as an invitee, the duty to not only warn about or make safe unreasonably dangerous conditions which they actually know about, but also they owe you the duty to reasonably inspect for and discover unreasonably dangerous conditions then provide warning or make them safe. You still have the right to a cause of action if the dangerous condition was open and obvious, but the defendant can argue that some percentage (up to 100%) of your injuries were your own fault – that you were also negligent. It’s ultimately up to the jury to assign percentages of fault if the parties can’t negotiate and agree themselves.
Remember: If a dangerous condition was open and obvious you might be prevented from obtaining a recovery. For example, if you slipped and fell in a puddle of water that had been marked off by three bright orange cones you would be unlikely to recover damages.
Q: Who is a Licensee?
A: You’re a licensee when you’re on property that is not open to the general public but the owner of the property has either expressly or impliedly allowed you to enter, usually for a purpose other than a commercial one. Examples include – but are not limited to – when you’re on site at work, when you had to be in possession of a ticket to enter a sporting arena or stadium to watch a game, and when you’re a social guest at someone’s home or private party.
Q: What duties are owed to a licensee?
A: The owner (or whoever is in control of the premises) has a duty to warn you of – or make safe – unreasonably dangerous conditions they have actual knowledge of. They don’t, however, have a duty to inspect for dangerous conditions. In addition, if you are found comparatively negligent as a licensee you will likely not recover damages.
Q: Who is a trespasser?
A: You are a trespasser if you have no legal right to be on the premises or are on the premises without any permission whatsoever – express or implied.
Q: What duties are owed to a trespasser?
A: Essentially none. The only practical exception is for an attractive nuisance. For example, a child drawn to a neighbor’s water slide and the neighbor fails to gate off access to it.
Q: How do you establish the at-faulty party had actual knowledge of a dangerous condition?
A: Establishing that the at-fault store or establishment had actual knowledge of a dangerous condition is often difficult. It is not impossible though. Below are some situations where actual knowledge could be alleged:
- Employee Statements: If an employee admits they knew about the dangerous condition prior to your fall.
- Store or its Employee Created the Dangerous Condition: Actual knowledge is presumed if the store or one or more of its employees created the dangerous condition in question. For example, actual knowledge could be presumed if a McDonald’s employee mopped the customer restroom and left without placing a yellow warning sign and you slipped and fell. You would need, of course, to demonstrate the floor was freshly mopped. This would be suggested if the whole floor was uniformly wet.
- Circumstantial Evidence: Actual knowledge might be demonstrated by demonstrating that an employee attempted to clean up a spill but did so in a negligent manner. For example, our firm represented an elderly woman who slipped and fell at a movie theatre. We were able to use witness statements indicating paper towels were on the ground near the spill to demonstrate an employee had undertook to clean up the spill but had failed to eliminate all of it from the ground prior to our client’s fall.
- Video Footage: Many businesses and retail establishments have surveillance camera systems. Our firm can request video footage of the incident if exists and examine the footage to determine if any store employee(s) walked by a spill, for example.
Q: How do you establish the at-faulty party had constructive knowledge of a dangerous condition?
A: If you are an Invitee on premises you don’t have to show the store or business had actual knowledge of a dangerous condition to recover damages. You can demonstrate that the store or business should have known of the dangerous condition – and warned you of it or made it safe.
Proximity to the Spill: Was a store employee or agent of the at-fault party located near where you fell immediately prior to your fall? If so, you can argue the employee or agent should have discovered the condition. For example, if a grocery store employee was stocking items in the same aisle where you fell when you fell. Also, if employees were stationed near where you fell or had a view of where you fell prior to the incident it is easier to suggest the spill should have been eliminated or that they should have warned you by placing a warning cone near the spill.
Remember: Most retail employees have a duty to monitor their surroundings to discover dangerous conditions. Many establishments have policies and procedures established for dealing with spills. For example, many establishments instruct employee(s) who discover a dangerous condition to “guard” it until they can get the attention of a co-worker to assist them. Further, some establishments instruct employees to place store products or merchandise on the ground around the spill to make sure customers are aware of it until it can be eliminated.
Conspicuousness of the Spill: How big was the spill? It is obviously easier to suggest that a store employee should have discovered a large pizza-sized puddle of water as opposed to a single drop of water on the ground. What color was the liquid on the ground? It is obviously easier to suggest a store employee should have discovered a red-tinted liquid as opposed to a small amount of clear liquid on a white tile floor.
How We Can Help You: Establishing constructive notice can be challenging and requires a detailed discussion of the unique facts and circumstances of your case. Our attorneys have years of experience in analyzing case facts to establish the requisite notice. Our firm’s private investigator will gather evidence to aid development of your case.
Passage of Time: The passage of time can be used to establish constructive knowledge of a dangerous condition.
An Example: If a 2 foot long trail of water from a leaking freezer led to a basketball-sized puddle it could be suggested the water was on the ground an extended period of time.
An Example: If you slipped and fell on ice cream on the ground and the ice cream had congealed prior to your fall.
An Example: If you tripped and fell in a deep pothole in the parking lot – since potholes do not form instantaneously.
Q: Does the reason you were at the premises in question impact the duties owed to you by the landowner, manager of the premises, or possessor of the premises?
A: Yes. Your status as an Invitee, Licensee, or Trespasser will dictate the duties owed to you by the at-fault party or parties.
Remember: If you are an Invitee (such as if you were shopping at a grocery store or at a restaurant to purchase food) the at-fault party owes you a duty to warn of known dangerous conditions and/or make known dangerous conditions safe as well as a duty to discover dangerous conditions on the premises. If you are a Licensee (social guest at someone else’s home, for example) the at-fault party only has a duty to warn you of a known dangerous condition and/or to make known dangerous conditions safe.
Remember: The duty to make safe and/or the duty to warn will differ from case to case. For example, in a slip and fall case where water was on the ground the duty to warn would include placing an orange cone or yellow “wet floor” sign near a spill. The duty to make safe would include – obviously – having an employee eliminate the spill. If the dangerous condition was a pothole, for example, the duty to warn would include placing a sign near the pothole to alert customers to its presence while the duty to make safe would – obviously – entail repairing the pothole so that the parking surface was uniform.
Q: What is a negligent activity claim?
A: In a negligent activity claim or case your injury occurs simultaneously with the at-fault party’s negligent act or omission. Negligent activity claims or cases are easier to win than a premises liability claim or case. In a negligent activity claim or case you must establish:
1) The defendant owed a general “duty” of care (as measured by what a reasonably prudent ordinary person or business would do (or not do) under the same or similar circumstances);
2) A breach of that duty;
3) That the breach was the proximate cause of your injuries; and
4) That you sustained “damages” under the law.
Q: What is an example of a negligent activity claim or case?
A: Let’s pretend you were at Home Depot shopping for household items. As you are walking around the corner of an aisle you are struck by a Home Depot employee operating a forklift at an unsafe rate of speed and not paying attention to his surroundings. You get knocked to the ground and tear the lateral meniscus in your left knee. In this scenario Home Depot would be liable for the negligent activity of its employee. Your injury (torn knee) occurred at the same time as the Home Depot’s negligent act (operating the forklift at an unsafe speed) and omission (failing to be attentive to his surroundings).
Remember: Negligent activity claims are fact intensive and the unique facts and circumstances of your case must be considered. Limitless possibilities exist for acts and omissions that may result in liability. The central question is how would a reasonable employee/company have conducted the activity given like or similar circumstances.
How We Can Help You: Establishing negligent activity often requires the use of an expert. Our firm has utilized an OSHA expert in the past to establish liability on cases where someone was injured on a job site. Our attorneys have utilized industrial hygienists, certified safety professionals, and other experts in the past to help our clients obtain a recovery. Our firm fronts the money to retain these experts at no up-front cost to our clients.
Q: Can we help you obtain medical treatment and services if you don’t have health insurance or don’t have money to pay the cost of your deductible?
A: Yes. Our firm realizes that millions of Americans still lack health insurance. We also realize the high cost of medical services and outrageous deductibles could limit your ability to get the medical services you need and deserve. We have relationships with a variety of medical professionals who specialize in treating victims of slip and falls, trip and falls, and other premises liability cases or negligent activity cases.
Q: Will you be required to pay for these services at the time they are performed or rendered?
A: No. The medical professionals and organizations we have relationships with will not bill you for services until the conclusion of your case.
Q: What are common injuries people sustain in premises liability claims or negligent activity claims?
A: In our experience the following injuries are fairly common in claims where clients have been injured at a work site, office building, apartment complex, department store, grocery store, convenience store, restaurant, or other retail establishment:
- Cervical disc herniation;
- Lumbar disc herniation;
- Cervical disc extrusion;
- Lumbar disc extrusion;
- Spinal injury requiring a fusion or discectomy;
- Torn meniscus of the knee;
- Torn rotator cuff;
- Sprain/Strain of the spine;
- Fractured or broken ankle; and
- Fractured wrist.
Of course, people can get injured in countless ways and sustain various injuries. The above list is not exhaustive.
How We Can Help You: Our Dallas slip and fall lawyers can help you establish the mechanism of your injury. In particular, in slip and fall and trip and fall cases how you fell and/or landed and/or the positioning of your body can impact your case value.
Q: Do companies exist that will advance you money on a premises liability or negligent activity case in exchange for an interest in the potential settlement proceeds?
A: Yes. Most law loan companies, however, are more hesitant to advance money on these types of cases as opposed to a motor vehicle collision case.
How We Can Help You: Most law loan companies will not advance you money unless you have an attorney. Our firm has established relationships with law loan companies who trust our ability to evaluate premises liability and negligent activity cases.
Q: What economic damages might you be entitled to in a premises liability or negligent activity case?
A: Available damages depend on the individual case. Economic damages are those that are readily ascertainable. Generally, the following economic damages are recoverable:
- Damages for the medical bills you have already paid or incurred;
- Damages for the medical bills you will incur in the future as a result of your injuries;
- Damages for lost wages if you missed time from work due to your injuries; and
- Damages for loss of earning capacity in the future.
An Example: If you are a truck driver and are injured in a fall and – as a result of your injuries – cannot sit for an extended period of time you would be unlikely to be able to continue your employment as a truck driver. You would likely need a light job standing on your feet. If the difference between what you made as a truck driver and what you made at your new job was $40,000.00 a year you would be entitled to the difference in pay multiplied by the number of expected remaining work years. This would constitute your lost earning capacity – although it would be discounted to its net present value.
Q: What non-economic damages might you be entitled to in a premises liability or negligent activity case?
A: Available damages depend on the individual case. Non-economic damages are those that are not readily ascertainable. Generally, the following non-economic damages are recoverable:
- Damages for your pain and suffering in the past;
- Damages for the pain and suffering you will experience in the future;
- Damages for physical impairment in the past;
- Damages for physical impairment you will experience in the future;
- Damages for mental anguish in the past;
- Damages for mental anguish you will experience in the future; and
- Punitive damages – although these damages are very difficult to obtain.
Contact our slip and fall attorneys in Dallas, Plano and Fort Worth today, to discuss the specifics of your slip and fall or other accident, and find out how we can help!
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