Every year people are severely injured by unsafe conditions existing in public places resulting in lost time from work, medical bills, and lost time with family and friends. According to the National Safety Council, falls resulted in 8.9 million visits to emergency departments in the United States in 2011, and falls are the second leading cause of unintentional death (more than 25,000 fatalities in 2009). Many of these injuries and deaths could have been prevented with proper maintenance.
In New York the general rule is that property owners have a duty of reasonable care to people on their property.
At its core, this duty is based on a societal choice that the property owner is in the best position to ensure that the property is safe and it is a better use of resources to place this duty on the property owner than placing the duty upon each person that enters onto the property. This duty means that a property owner to consider the foreseeable consequences of the condition of his or her property and takes steps to remedy any dangerous conditions.
Who’s responsible for your injury?
If you are hurt by a dangerous property condition the property owner may be responsible to pay for the damages. In order for the landowner to be held liable it must be shown that they could have prevented the injury if they had taken reasonable precautions for the safety of their guests. The property owner is responsible if they were negligent and their negligence caused the slip and fall. The property owner is negligent if they knew or should have known that there was a dangerous condition on their property, and they failed to take reasonable steps to correct the dangerous condition.
The extent of the property owner’s duty depends on many factors. For example, the location on the property of the slip and fall is important. Is the location of the snow and ice a high foot traffic area? This is important for two reasons. First, if the defect is in a high traffic area it is more likely that it should have been discovered by the property owner. Second, the more people that are required to walk across the area, the more important it is to keep the area safe. Property owners of stores and public places should know that if the condition is located near an entrance or exit door it is more dangerous because all the patrons to their store must walk in and out of the doors.
Areas such as cross walks painted in a parking lot also must be particularly maintained because the crosswalks are essentially directing people to that area. Given the large number of people that travel over these areas, it is not unreasonable for the community to expect that property owners will safely maintain these areas particularly well. On the other hand, if the ice and snow are located on a homeowner’s back steps and people rarely use the homeowners back steps, it might be reasonable that the steps were not cleared until the evening after a snow fall. However, each case is unique.
IF YOU OR A LOVED ONE SLIPS AND FALLS ON SOMEONE ELSE’S PROPERTY, THERE ARE IMPORTANT STEPS THAT YOU SHOULD TAKE.
When possible you should notify the property owner as soon as the incident occurs. Stores will often complete an incident report; if possible obtain a copy of the incident report. If you are not able to get an incident report, then at least try to get the name of the store employee that you notified. As indicated above, note the location of the incident in relation to entrances, exits, cart corals, etc.
If you have the opportunity, you want to take photos as soon as possible following the incident. When the condition that caused the slip and fall is snow and ice (or even a spill) the condition will usually be cleaned up shortly after the incident. Photographs will make it easier to establish whether or not the property owner should have known about the condition. Not surprisingly, property owners often claim that they did not know about the condition. An injured person can prove that the property owner had notice of the condition by showing what is known as “constructive notice.” This means that the condition existed for such a length of time that the property owner should have discovered the dangerous condition and corrected it. Pictures taken as soon as possible after the incident may help prove that the condition existed for a sufficient period of time by, for instance, showing evidence of multiple other foot prints in snow and slush.
Make a mental note of the weather conditions that day. Property owners in New York may assert a defense known as the “storm in progress.” The “storm in progress” doctrine means that a property owner has until a reasonable time after inclement weather has stopped to clear snow and ice off their property. This doctrine means that if it is snowing significantly at the time that the slip and fall takes place you may be barred from recovering. However, it may be possible to prove that the ice that caused the injury had existed prior to the storm that was in progress or was a recurring condition and the property owner may be liable.
It is also important to find out who is responsible for the condition of the property. This is not always easy. The property may be owned by one party, leased to another party and managed by another party. Any one or all of these parties might potentially be responsible depending on the arrangements they have made between themselves. In addition, parties that do not own but perform work on the property may also be responsible. For instance, snow plow companies may fail to timely correct dangerous conditions that they have contracted to take care of, or contractors may create dangerous conditions on the property by pushing snow and ice onto the sidewalk or failing to leave a path.
If the condition exists on a public sidewalk, the remedy is usually against the municipality. Many areas have passed laws that make the sidewalk the responsibility of the abutting property owner. These laws sometimes mean that the injured person can bring a cause of action directly against the abutting property owner instead of the city or town. If an action must be brought against a municipality, there are short time limits in which the municipality must be notified. Failure to meet these short time limits means that the claim could be barred.
If you are injured in slip and fall, you should contact a personal injury attorney as soon as possible to discuss your case. Each case is fact specific and only an experienced personal injury lawyer can weigh all the factors to determine whether a property owner may be liable.