Posted by Gary Burger on November 10, 2017 in Premises Liability
Gary: I’m Gary Burger of Burger Law. I have over two decades of experience in representing individuals injured because of the dangerous condition of property. Landowners, whether you’re a homeowner, whether you have a business, you invite people there, whether you own a parking lot, you have a duty to keep your conditions safe for guests, and if you violate that duty and violate the rules that we have for keeping those premises safe for your guests, you’re responsible for that harm. When individuals or their family members or friends are injured because of that and they’re not able to resolve their cases on their own, I represent them. So, if a commercial business has property that is unsafe, if there’s a hole in the ground somewhere that you don’t see, if a landowner has ice or snow on the ground and they try to clean it and they don’t do it or there’s thawing and refreezing and there’s black ice and they’re not monitoring it and you’re injured, those folks are responsible for harm and they have insurance for that.
We have many years of experience in this and have been very successful in these claims. So, if you’ve been injured in one of those ways, call us to talk to us about it. We’re at 314-542-2222 in Missouri, 618-272-2222 in Illinois. You can also go on our website. We have a lot of articles, a lot of videos about this to educate yourself.
One of the things about these types of cases — whether you call them slip and fall, premises liability types of cases — is that there has to be a dangerous condition of the property, and some folks think, “Hey, do I get recovery just because I was injured on some property?” I’m going to turn to my great associate Joel Beckwith for the answer. Do people get automatic recovery just because they hurt themselves on somebody’s property?
Joel: Not at all.
Gary: Can you describe that to us?
Joel: I definitely can. First, you have to be very, very cognizant of the fact that it has to be a dangerous condition that the owner knew or should have known of in order for you to have a claim, and this dangerous condition has to be what actually caused your injury.
Gary: Give us some examples of what we typically see in these cases where you take a lot of these calls, you help a lot of these folks, what do we see?
Joel: Well, we get clients who are minding their own business. They might be at a retail establishment shopping for something and suddenly they find themselves on the floor, slipped and fell on something that was wet, something that shouldn’t be there, and something that had been there for quite some time. And, in those types of situations, they were not at fault. This particular type of condition, this particular case I’m thinking of, it was a spilled milk shake that happened to linger on the floor for quite some time, and the owner was given plenty of time to take care of the situation, to clean up the spill, and they didn’t.
Gary: Great, and one of the ways we know that is that whenever we get these cases, we immediately ask for the videotape and that for the defendant to preserve the videotape of these instances, a lot of these security cameras, and we were able to find out that milk shake was on the floor for a half hour, and no one did anything about it. It was on the floor for a minute. I think you’d have a harder argument. It’s a big national chain. You’d have a hard argument that they were negligent, and the standard is and what we do is we look to Missouri and Illinois law about this that what we have is we ultimately try these cases and we try these lawsuits. We have jury instructions, and here’s a jury instruction, and what the jury instruction says is that the defendant or the landowner either knew or by using ordinary care could have known of the danger. So, could they have known on it, and it’s an obligation for folks.
If they’re making money off people who are buying their goods, they have to have rules and protocols to have people go look at the aisles, to have people inspect it. To wipe the floor on a rainy day, make sure you have mats on in there. You have people spilling drinks in a restaurant where the waiter’s coming in and out. I have a bunch of these cases. You got to clean that up in an expeditious manner, not unreasonably but reasonably using ordinary care for your guests; you should have done that.
And, you have to explain to potential clients when they call that you don’t automatically recover just because you’re injured. What was the dangerous condition or what did the landlord do wrong or what did the store owner do wrong?
Joel: Right. And having the opportunity to take care of the situation and presenting a dangerous condition for which a client didn’t have a warning and suddenly they are on the floor injured with a broken arm or a broken hip or knee issues, that would be a situation that would be right.
Gary: One of the cases that I tried and was featured at an article in last year’s lawyer newspaper was our client who slipped and fell on a patch of black ice outside of a hotel. It was unwitnessed fall in Springfield, Missouri. Our client slipped and fell and injured himself. Now, he got medical four days later but was not diagnosed with significant medical care until about five months later, and that sounds like a problem, right? Well, we were very aggressive in the case.
Good for us is that he did report it to the manager right away, and he had taken a picture of the salt that was on his coat, and so we knew that it had been salted. We were able to get a $250,000 recovery for our client. We paid off all his medical, put a lot of money in his pocket. We reduced all the medical liens, as we always do, and it was significant enough to be written about by one of the reporters of the Missouri Lawyers Weekly.
And we happen to be recording this video. If you watch it in the summary, you won’t appreciate it, but we happen to be recording this video on… John, how cold was it this morning when you woke up, one, three?
John: I think maybe four degrees.
Gary: Yeah, it was freezing this morning. We’re recording this in January. John, can you talk to us a little bit about… This is John Burns of Burger Law. John, talk to the folks a little bit about snow and ice falls and the interesting law that we have surrounding that.
John: Sure. So, just because snow is on, for example, say, a parking lot, just because it snows and there’s snow or ice in the parking lot does not necessarily mean that the landowner has to clear that snow off of the parking lot. However, if the landowner does undertake to clear the snow or the ice off the parking lot and does it negligently, then they are liable for that. Now, there are exceptions to that of course. If the snow comes down in a particular way where it’s uniquely accumulating in one particular area so that the landowner should have known to take ordinary care to clean that up, then they can also be liable.
Gary: Right. In the Midwest, we’re the thawing and refreezing capital of the world. This happens all the time, where the stuff melts, and then one day it’s 50, the next day it’s 20, and this just happened, and we get that all the time, and so, when that thaws and refreezes, and that happened in this case right here, and so they denied in this case, so I took a video deposition of the defendant, and he said he didn’t know about any problems, didn’t know any problems, and it happened near a gutter, and I showed him a picture where they had a bucket sitting underneath one of their gutters to collect the dripping, and I said, “Why do you have this bucket here?” He’s like, “Oh, I guess we knew about it,” and then he ended up admitting that they knew it was a problem, that they had encountered the problem before, that they knew that ice refroze in that area, because you know, where there’s smoke there’s fire. If someone gets injured in this type of a thing, it ain’t the first time it’s happened and most of the time these landowners know.
But you make a good point, John, too that in Missouri and Illinois and most other states, it’s considered in the law that snow and ice is an act of God and someone’s not necessarily responsible for it. However, if they do take action, do it negligently like failure to shovel everywhere, shovel off the snow but leave the ice, only put some ice melt on and not reapply, or not put up the ice melt before it freezes. There’s a host of other ways where they’re negligent, and if you’re in the business where you’re bringing in customers and you’re not closing when it’s snowy and icy out, you’re responsible if people fall and injure themselves. What are some of the things that when we talk to clients about this, what do we ask them to identify and talk to us about in these types of claims?
John: Well, obviously we would want to know whether or not they witnessed anybody putting out salt or shoveling snow, clearing ice, if they have any photos of shoveling snow or clearing ice or photos of the injury, how they fell, how they landed, the parts of the body that were injured, stuff like that.
Gary: All right. Good. And Joel, I’m going to surprise you now. So, have you ever had it where someone doesn’t know why they fell at first?
Joel: Yeah, yeah.
Gary: What do we do about that?
Joel: In those types of situations when a client has ended up on the floor because they slipped and fell in a dangerous condition, usually it is an intel after the fact that they realized that, “Hey, this was a dangerous condition. I didn’t see it, it wasn’t there, it wasn’t open and obvious, and that’s why I’ve been hurt.” And so, those are the types of claims that we usually would pursue.
Gary: Great point. And, that happens all the time because if they knew there was lettuce on the floor like the case we talked to the client yesterday, if they knew it was icy, if they knew there was a shake on the floor, they would not walk there. And Joel brought up, what does open and obvious mean?
Joel: If a particular dangerous condition is present and it would be open and obvious to a reasonable person, then that’s something that a person should be made aware of just by being present around the dangerous condition.
Gary: And there are jury instructions on that. So, the jury instructions say that if you’re negligent, if you knew it was there, or if you’re coming up to a hole in the sidewalk and there are barricades around it, you don’t keep going, so you have to be aware of that, and so that’s right. And folks all the time fall and they don’t know what they fell on until afterwards. They’re laying on the ground, and they see the piece of food that was on the ground, they see the ice, they see the water. And, I’ve had these folks, I’ve been in depositions, like, “What did you fall on? ‘I don’t know.’ What do you mean you don’t know? ‘I was soaking wet after.’” So, then we know that they fell on water. And, I’ve had this so many times where someone falls, and there’s ice in the parking lot, and then someone comes in and tries to help him and slips on the same ice that they were on. Didn’t we have that, the person slipping on the same patch of water, or is that the case you were working on with me where she was by the door and then the manager came by and slipped on the same patch of water and got a towel and wiped it up?
Joel: Right. Yeah, I actually remember that particular case.
Gary: So, that happens all the time. So, it’s not necessarily that you know what it is going into it, but you know about it after. So, one of the other things that we encounter is — and you have to be careful about is — what about when you’re a tenant? What about when you’re injured on property that you lease from somebody? And this happens all the time. You’re hurt in your apartment. You’re hurt outside of your apartment. You are hurt on someone else’s property, but they rent the property. You’re hurt in someone’s store, but the store owner only leases the store from the building owner, who only leases the store from the property owner.
One of the things we have to do is we have to identify all the parties involved: Who owns the place, who doesn’t own the place? The other thing is that — and we have to sue those and name those people — we have a case right now. Joel, what did we have to do in the Nico Blakely case? Nico was injured when a brick fell through the ceiling of a hotel and landed on his head.
Joel: Well, we had to examine who owns the hotel. It’s the biggest question, and then after that, who manages the hotel, who manages the premises and takes care of the maintenance? And so all of these different parties are all at one percentage or another at fault for the accident that happened.
Gary: Right. And in fact, there’s a specific jury instruction in the Jury Instructions on Tenants Injured on Premises Reserved for Common Use, and there’s a whole set of laws on invitees and tenants and how that interrelates. And basically, if you’re in your apartment and you’re injured, it’s not the landlord’s fault. If you’re in a common area that is maintained by the landlord, then that is the landlord’s responsibility.
But with every rule there is an exception. There’s also the exception is if there’s an area of the apartment in the area that you are that the landlord fails to maintain and that injures you, then that is the landlord’s fault and they’re obligated to that too. Have you encountered that, John?
John: Not that particular situation, but we’ve had been reviewing a case where the landowner knew about the dangerous condition prior to leasing the facility to the tenant, so that’s another where the landowner could be held accountable.
Gary: And that’s some of the things that we do as we navigate this law. One of the things that I have — and I have coincidentally — I have these articles here, right? You’re laughing. So, in this case, which was a different case featured in the Missouri Lawyers newspaper, my clients, the Macharias were sitting on their back deck on Memorial Day with their cousin, and the deck collapsed, and they fell, and Mary sustained a low back herniated disc, and Michael sustained a bad fracture of his ankle, he had two surgeries, plates and screws.
In this case, Joel was talking about the multiple parties here. We sued the apartment owner, the condo owner who leased it to them, we sued the condominium association, and we sued the management company that Joel alluded to in this Nico’s case. We sued the management company, and we litigated this for a long time. No one wanted to take responsibility. We ended up settling this case for 1.435 million dollars, and I went and I visited the Macharias’ home about a couple of weeks ago and saw the home that they built, that they bought with some of the money from this case.
We did a lot with that case, structuring the settlement, doing different stuff to take care of them for the rest of their lives, and I thought that was a significant recovery. We did a pile of work on that case. One of the things about our firm is we’re not afraid to do the hard work, and I had piles of documents. For the mediation of this case, I made these huge exhibits of these timelines of the complaints that they got about these decks. It was outstanding.
The day after this happened, they had submitted a press release. The management company submitted a press release saying they weren’t at fault and it was the owners at fault. In the deposition of the management person, I got her to admit that press release had three lies in it, and she admitted to lies in the deposition. The day after the incident, the St. Louis County came up and put code violations on 60 decks in that condominium association because they weren’t bolted into the wall, the day after this, and we got in a, what’s called a per se violation.
So, one of the things we do is I have the BOCA code sitting over there, the building code. In these types of cases, if you can prove that there are statutes and regulations that govern the safety. Well, you worked in construction before you were a lawyer. There are a lot of rules attendant to safe dwellings and safe buildings, and if those are violated we get them on a per se violation, they’re automatically liable. Sometimes that warrants punitive damages.
So, that was a significant recovery and a significant evidence that we did in that case. But, there really is a lot to navigate around in some of the premises liability cases with these instances. And, one of the things that we have to worry about is that negligence on the part of the person who was injured. I have picked many juries in these cases, and from a starting point, if you’re slipping and falling, sometimes people think it’s your fault, and sometimes you’re partially at fault. It depends on the case. Obviously, the Macharias were not at fault. Obviously, my client, he did not see the ice on the ground. So, what are some of the things… I’ll turn it to Joel. What are some of the things we talk about with clients to assess their culpability in the fall?
Joel: Well, it’s very important that in order for you to have a viable claim that there was not a sign warning you that there was a particular slippery condition when you walked in because if there’s a sign, the owner has informed you reasonably and they cannot be held legally accountable for that.
Gary: John, any other examples of that?
Gary: All right, thank you, good. That’s a great answer. No. And you need to be looking out for your own safety when you walk, and most folks do. No one tries to get in these types of incidents. One of the other things, and I just have one other thought on this and maybe we’ll close. Two other thoughts. Let me do two other thoughts. Well, they kind of relate. So, what happens when you’re injured in your family or friend’s property? And we get this all the time. “I don’t want to sue my brother, my dad, my friend. I don’t want to make a claim against them.” And I say, well, of course that happens because who do you hang out with? You don’t hang out with strangers. You go to your friends. You were at my house for Christmas, you both were. You go to your friends’ houses. You’re in a car with your family when you’re injured. You’re with your family, you go visit their farm, you go visit their house.
And so, let’s remember that we have insurance for a reason. I have insurance on my house, so if you or your wife would have slipped — I did a great job salting — but if you would have slipped and injured yourself, I would want to take care of you.
John: Well, it’s funny you mentioned that. My neck really kind of hurts right now, and I’ve been meaning to see the chiropractor.
Gary: Okay, well I have insurance. But, you know, that’s why we carry insurance, it’s so that when our friends and our families are injured because of my negligence. If I had a hole in the ground that I didn’t fill in with dirt or my dog dug something and someone got hurt, I want them to be taken care of, and that’s the responsible stand of thing to do. It’s only when landowners are not responsible, stand up for their responsibility that you need a lawyer like me. So, don’t be dissuaded if a family or friend is involved in an accident, and we have those cases right now. One of our client’s brother pinned him between two golf carts, and terribly broke his leg with plates and screws. We just settled a case where one of our clients was with her family and twisted and broke her ankle with that. And, I’ll bring you another one.
So, this is a case that brought in a lot of legal issues into the case. It’s a terribly sad case where our client was riding on the back of an ATV in Jefferson County with her husband on property, and the landowner had a wire — this was featured in one of these lawyer articles — we settled the case for $600,000, the maximum policy limits in the case because we have put a lot of pressure on the insurance company, because if they don’t settle within the policy limits, then the limits don’t apply and we can get an excess verdict against them.
But, there was a wire strung between two trees, a barbed wire that they used for a clothesline. It’s a clothesline — like you do in football, like you hear — and they hit that, and the husband stood up to take the impact, to try to save his wife, and he did, and he passed, and it was a tremendously sad case. We fought long and hard on that one, they didn’t want to pay us, and they paid us.
The point of that story is to bring up a couple of things. Incidents happen with family members all the time. That condition was open and obvious. Why didn’t they see it? Well, we elicited evidence in the case that he was following the son of the landowner — they were guiding him — and he went around one tree, our guy went around the other tree. No one did that. If you have a condition on your property, just like Joel said, you got to warn about it. If there are potentially dangerous conditions, you have to warn about it. No one warned about it, no one told him about it, and that’s what happened.
And so, many times these cases end up with injury. Sometimes, death is caused by them, and Missouri’s wrongful death statute gives the family members the right of recovery for that death. There’s a three years statute of limitations.
And so, what are your takeaways from this talk about premises liability cases, John?
John: I’d say that one of the takeaways is ensuring that you’re watching where you’re going and that you’re not avoiding some barricade or warning. That’ll be one.
Joel: I think that, just like John said that you know where you’re going and you’re cognizant of the fact that there are accidents, there are dangerous conditions out there, and we want you to be safe, and you want you to be safe.
Gary: Safety is paramount. We try to enforce safety with our claims. We sue people for safety rule violations. The other takeaway that I’d add — because I’ve been doing most of the talking here — is if you’re ever in this situation, make sure you report the incident to the manager of the store, make a claim, fill out an injury report, tell everybody you’re injured, document it. That way everybody knows about it. Get your medical care, get an ambulance, or this gentleman was airlifted. Take care of yourself, take care of your safety, but report it as well.
If you have any questions about premises liability cases or any other type of matter, 314-542-2222, 618-272-2222, www.burgerlaw.com, email me at [email protected], [email protected], [email protected] We’ll answer your questions for free. We’ll let you know if we can help you with your case. Thank you.