1. What facts must I have to win a premises liability case?
In order to win such a case, an injured person must prove that the person or company owning the property where the fall occurred owed a duty to the injured person. People who are on the premises of a business, such as customers in a store, are owed the highest duty of care by the business owner. Next in line are licensees. The final type of injured person is a trespasser who is owed the lowest duty by the landowner.
Another issue is how obvious the defect is that caused the injury. If clear liquid is spilled on a highly polished floor, and the injured person did not see the liquid which caused him to slip and fall, there is a good chance of recovery for the injured person. On the other hand, if the defect is open and obvious such as ice, and the injured party had an alternative course, there is a good chance there will be reduced recovery in the case.
2. What types of cases are recoverable?
The following types of cases have resulted in
recovery for the injured persons:
A. Slipping on water tracked in by customers at a mall.
B. Tripping on a crack in a sidewalk.
C. Slipping on produce in a supermarket.
D. Slipping on hills and ridges of accumulated snow or ice on a sidewalk.
3. Am I entitled to recover damages for my injuries,
and if so, what are they?
A. Damages in General
Once the liability of the property owner has been established, it is necessary to prove what monetary award to the injured person is appropriate to place him or her back in the position he or she was in prior to the injury. The amount of damages to be awarded depends upon what is claimed by the injured person and what is introduced at trial. Generally, the injured person is entitled to past and future loss of earnings, medical expenses in the past and future, and pain and suffering.
B. Past And Future Medical Expenses
The property owner must pay for reasonable and necessary medical care the injured person had. The injured person may introduce medical bills at trial even if they have been paid for or forgiven by the provider. Unfortunately, where a spouse provides services to the injured person, such services are not compensable unless a specific contract is created between husband and wife. In order to collect for future medical expenses it is necessary for a medical expert to state such care is required. The amount of proof required at trial is dependent on the type of care and the condition of the injured person at the time of the testimony. For instance, in the case of institutional care, the plaintiff’s life expectancy must be introduced at trial. Future medical expenses need not be reduced to present value.
C. Loss of Earning Capacity, Past And Future Earnings
An injured person can recover for loss of past earnings as well as lost earning capacity. Lost earnings are actual monies which the injured person would have earned but for the accident. Loss of earning capacity is a reduction of the injured person’s ability to earn money irrespective of the specific job he or she held. It also
recognizes that what someone is earning at any given time is not always reflective of what they could earn in
the future. This is especially critical in the case of a young person who is just entering the workforce. Because of the collateral source rule, an injured person can recover for wages since the accident even though he or she had been paid the wages. An injured person must prove his or her disability will continue into the future in order to recover for future lost wages. This disability in the future must be quantified by a medical expert. This would include any permanent disability claimed by the person, taking into account not just the person’s life expectancy but the working life expectancy as well.\
D. Pain and Suffering
In addition to recovery for medical expenses, wage loss and impairment of earning capacity, an injured person can recover monetary damages for pain and suffering. Pain and suffering, both past and future, includes physical pain, mental anguish from an injury, humiliation, disfigurement and loss of life’s pleasures. The amount of money awarded for pain and suffering varies with each person. The amount to be
awarded is not what an average person would be awarded, but rather what this individual should receive. It is a subjective standard. Merely because a person has resumed his work or daily activities does not mean a claim for pain and suffering can be made. The injured worker may also recover for pain and suffering if his condition worsens. Fright or mental suffering directly related to the accident may also be awarded even though no significant physical injury occurred. Even pre-impact fright is compensable, as in an injured worker witnessing a fellow person being injured may be sufficient to receive monetary damages. Disfigurement such as a scar from an injury is compensable. Merely because plastic surgery is available does not prevent such a recovery, because the award is made at the time of trial. Loss of life’s pleasure is also compensable. It includes being able to carry on a normal life, reducing one’s social activities, not being able anymore to marry and have children, and losing a feeling of wellbeing.
E. Loss of Consortium
The spouse of an injured worker, whether husband or wife, may recover a monetary amount for loss of the
injured spouse’s conjugal affection, comfort and assistance, protection, guidance, companionship, and
the ability to perform sexual relations. Live-in companions are not covered by this loss, although there
is some case law which states a common law spouse would be covered. A claim for the loss of consortium
only derives from that of the injured spouse. If the injured spouse does not recover on the liability issue, there can be no recovery for the spouse claiming loss of consortium.