Jim Kiley talks about Personal Injury - Part 2 Jim Kiley talks about Personal Injury - Part 2 Transcripts:
Mark: I have a good friend that was going into a grocery store recently in the winter time, after a tremendous snow fall that we had. When she walked into the store, the floor had not been properly mopped, and obviously or evidentially there was a fair amount of water on the floor. And she fell and broke her wrist quite severely, where she had to have it pinned. What are some of the issues or concerns one would have on filling a personal injury case?
Jim: Along the nature of your friend?s story? Well the issue with premises liability, first you'll have to show the duty of care. Obviously a land owner in New York has a duty of care to act reasonably, to prevent foreseeable risk on his property. So in the case of a slip and fall, or trip or fall on property, you have to establish first it was a dangerous condition. Water inside a supermarket isle is a dangerous condition. You could slip and fall. Where the case gets difficult from the plaintiff?s point of view, is that use, and lien owner is not an absolute insure for people on its property. Just by the fact you fell doesn't not mean that the land owner is responsible or liable to the person. You have to show that there was a dangerous condition, and either the landlord, the landowner, or the tenant, the person in control, the entity in control, they created that condition. They, through their employees, agents, servants whatever, had either actual or constructive notice of the condition. So you take for example the wet floor in the grocery store. Mrs. Plaintiff comes along, falls and breaks her wrist. To prove that case you'd have to establish, yes there was a supermarket that owned the property, and they had an obligation to keep the premises safe. Yes there was a dangerous condition, water or slippery substance on the floor. The key question in the case would be is there a notice. Is there evidence that the store owner created the condition? Evidence to the effect of a witness saying this store clerk had dropped something, and it spilled half an hour ago, and they never cleaned it up. Well that's very rare that you have evidence like that. If there is no evidence that the store created the condition, they you've to establish that they were legally on notice on the condition. Two types of notice. Actual notice which sometime you're in a supermarket and you'll hear, ''you know we?ve got clean up in isle 6, Charlie send someone from the back to clean up isle 6.'' Actual notice or constructive notice, where there is evidence from a witness who will say no, that was there 3 hours ago, or 2 hours ago whatever it might be. The law will deem that the property owner had a duty of care to inspect its property periodically and to determine if there are dangerous conditions and remedy them. That might be evidence perhaps that the defendant, while maybe not creating the condition or actually knowing was on constructive notice, they should have known. Particularly in the scenario you're giving me, that's a little bit more complicated. Where you have an outside condition, and people are bringing in melted ice, snow into the store. The case law would suggest that you don?t have to prove in those situations the particular puddle that the client fell on, or the notice thereof I should say. There is case law that says where there is a recurring condition, whether it's raining outside, you're on a notice of a recurring condition of people tracking water in on their shoes. Well then you have to take reasonable measures to remedy that condition. So in that particular case, I?d be interested to know what measures they had taken. Were there mats out? Were there mats inside the foyer, inside the store, all the way in? Facts to that nature would go to the merits of the case.
Mark: Frequency of mopping the floor?
Jim: Frequency of mopping the floor, that kind of thing. Again very often a client who is seriously injured and they feel somebody is liable and they don?t realize that it's not that simple. You've got a couple of parts in the equation that we still have to show negligence and liability. Very often notice is the critical element of the liability, for finding liability against the property owner.
Mark: So just having a wet sign there may serve its purpose then. Wet floors!
Jim: A wet floor sign would not necessarily exonerate the land owner from liability, but it would certainly be evidence of its duty to warn, and it could certainly be evidence of a plaintiff?s comparative negligence. New York is a comparative negligence state, which means when juries are instructed on the law, they are told they can apportion fault between plaintiff and a defendant or between multiple defendants. There are instructed that they can find a mixed verdict. They can find that yes, Mr. Landowner you were negligent, and you should have cleaned up that water. You were on notice of it. But Mrs. Plaintiff you should have seen that sign. You should have been more careful, so we'll apportion fault 60-40, or 70-30, or 50-50, or something to that effect.
Mark: So it's important that the store is mopping that water up on routine basis.
Jim: Yes and I?m sure most stores, the larger chains are getting advice from their home office and human resources, and are going through painstaking classes and processes to make sure their employees are aware of that. But you know, what happens in real life is something that's often not the case.
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