Premises Liability: An Overview

The term, “premises liability” refers to the legal responsibility of an owner or occupier of property for accidents and injuries occurring on that property. A landowner’s liability for negligence arises from his duty to make the land reasonably safe for persons on it.

Premises Liability Trends

Traditionally, the extent of the landowner’s duty depended on whether the person on the land was an invitee (a person invited onto the land to conduct business with the possessor, such as a shopper in a department store), a licensee (a person who is present for non-business, non-commercial purposes, such as a social guest), or a trespasser (a person who enters upon the land with no right to do so).

The more recent trend is to distinguish only between those who are lawfully or unlawfully on the property. In regard to children, however, even if they are not authorized to be on the property, a landowner has a duty to warn of dangerous conditions if he knows, or should know, that children are likely to be on the premises. He may also be obligated to erect barriers or take similar steps to keep children away from the danger.

New York Law

In New York, the visitor’s status as invitee, licensee, or trespasser does not alone determine the scope of the duty owed in a premises liability case. It is merely one factor to be taken into account in assessing whether a landowner acted reasonably under specific circumstances. An additional element to be considered is comparative fault. A visitor has a duty to exercise reasonable care for her own safety. When she fails to exercise such care, her recovery for damages may be limited or reduced by the extent of her own negligence.

In order to hold a landowner liable for injuries occurring on his land, the visitor must prove injury as well as the cause of the injury. She must show that a dangerous condition existed on the land and that the landowner created or had notice of the condition. She must further demonstrate that the landowner failed to take reasonable steps to fix the dangerous condition or to warn visitors of its existence. A landowner also has a duty, although a limited one, regarding public ways abutting his property, such as sidewalks.

It is not enough, for example, for a plaintiff to state she was injured by falling on a pile of wet leaves on defendant’s property. A pile of leaves, even when wet, are not held as a matter of law to be inherently dangerous. In addition, even if a condition is dangerous, a landowner must be shown to have known about it. Thus, if a property owner repaints a curb outside his store and plaintiff slips on it, she must show that the owner knew or had reason to know that the paint might be slippery when applied to a curb. This reasoning applies to other potentially slippery substances such as wax or polish.

Knowledge Of The Danger

A landowner’s knowledge of a dangerous condition may be actual (he saw it himself or was otherwise made aware of it), or constructive (the condition was visible and apparent and existed for a long enough period of time that the owner should have discovered it). In one case, a plaintiff was injured after slipping and falling on water in the floral department of a grocery store. The owner was held liable after several store employees testified that, as a result of water dripping from bouquets, there was a recurring condition of water on the floor. Further, the owner had actual notice of the condition and constructive notice of each recurrence of the condition.

The “recurring condition” theory does have its limits, however. In another case, plaintiff slipped on a beer bottle left on the stairwell of an apartment building. The building’s superintendent admitted knowing of a recurring dangerous condition caused by debris in the stairwell. But the New York Court of Appeals found no liability on the part of the owner because the plaintiff failed to prove the owner’s actual or constructive knowledge of the beer bottle that had caused her to fall.

Similarly, a general awareness of a building’s stairs becoming wet during inclement weather does not establish an owner’s knowledge of the specific icy conditions causing plaintiff’s injury. The “recurring condition” theory has not been expressly rejected in New York and lower courts continue to decide cases on that mode of reasoning.

Open And Obvious Hazards

Previously, landowners were not held liable for dangerous conditions that are open and obvious to visitors. Recently, however, courts have ruled that, although a hazard may be obvious, the landowner may still be liable for failure to maintain the property in a safe condition. If a dangerous condition exists on neighboring premises, a landowner has no duty to warn or protect others from the danger unless the owner created or contributed to the danger.

Thus, if a tree on abutting property falls on a parked car in the owner’s driveway and causes injury, it is not necessarily foreseeable that the owner would have known where and when the tree would fall, even if he had recently seen it tilting in a severe storm.

Contact An Attorney

Premises liability cases can be tricky to prove. They require careful analysis by a competent attorney as to the facts as well as the owner’s duty and liability. In addition, the attorney should be consulted in a timely manner in order to protect and preserve evidence in the case and ensure that claims are field within the statute of limitations.

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Nursing Home Slip and Fall Cases: Choosing Your Attorney Wisely

Nursing home litigation requires the expertise of an attorney familiar with issues faced by elderly residents in long-term care facilities. A slip and fall injury in a nursing home involves vastly different facts, causes and legal analysis than an ordinary slip and fall case. In a nursing home lawsuit, your choice of attorney can make a crucial difference in whether or not the litigation is successful.

Falls in nursing homes are all too common and pose a continuing threat to the life and health of elderly residents. Attorneys experienced in nursing home litigation know that slip and fall investigations may go well beyond questions of whether the floor was wet or the lighting was dim. Often, to determine whether the facility is negligent, lawyers must carefully review the nursing home’s practices and procedures, especially as they relate to individual residents.

Assessing Risk

Upon admission to a nursing home, every resident undergoes a full risk assessment. The resident’s fall history is a critical aspect of this evaluation. Therefore, in determining whether a nursing home is liable for injuries caused by a resident’s fall, the initial inquiry might focus on whether the facility staff knew that the resident was more likely to experience a fall. It is the responsibility of nursing home staff to prevent falls and their resulting injuries. Failing to do so can be nursing home neglect or negligence.

Accordingly, once the resident’s risk assessment is completed, staff must develop a comprehensive care plan that highlights the resident’s risk of falling and strategies for addressing it. Details of the plan must be communicated to staff and properly implemented. The plan must also be regularly reviewed to see if it is being followed and whether it is in need of revision.

Fall prevention strategies may include handrails, proper bed positioning, and an individualized toileting program. To alert nurses when the resident gets up, a chair or bed alarm can be vital. Restraints, on the other hand, tend to increase the likelihood of falling. Regular exercise can help to improve a resident’s mobility, but activity programs must be carefully tailored to individual abilities.

How Nursing Home Falls Happen

Many nursing home falls occur because of preventable hazards like slippery floors, poor lighting, improperly adjusted beds and poorly maintained wheelchairs. In addition, a resident’s functioning might be impaired by over-medication, improperly fitted shoes and lack of walking aids such as walkers or handrails.

Nursing home hallways and common areas should be well-lit and have easy access to handrails. Carpeting that is tightly woven will help to avert slips and falls. Bathrooms should be equipped with raised toilet seats, grab bars, and non-skid flooring. Staffing levels must be adequate, allowing for quick response to calls for assistance.

Choosing An Attorney

If you are thinking of filing a lawsuit because a loved one has been injured by falling in a nursing home, your choice of attorney is important. Consulting a lawyer whose experience is limited to ordinary slip and fall cases is not sufficient. Nursing home cases require the expertise of a lawyer well-acquainted with facility practices such as risk assessments and comprehensive care plans. It is also essential that the lawyer be familiar with the conditions and hazards that can contribute to nursing home slip and fall injuries.

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Nursing Home Slip and Fall Litigation: Examples of Recent Lawsuits

If you are considering filing a claim for a nursing home slip and fall injury, it might help you to view the facts and circumstances of actual lawsuits. Below is a selection of cases decided in New York State within the past decade. The facts in your own case may be very different. These case examples are in no way intended to limit your decision as to whether to proceed with litigation. You should always consult an attorney competent to advise you on slip and falls or other nursing home neglect matters.

  • An 87 year-old resident of an East Rockaway nursing home facility fell and fractured her elbow when she got out of bed in her room to close the curtains. The resident, who also suffered from advanced dementia, had been able to walk with the aid of a walker prior to the accident. As a result of her injury, she no longer had the strength to use a walker and was confined to a wheelchair. In her claim, she alleged that the nursing home was negligent and had violated state regulations requiring adequate supervision of nursing home residents. She claimed that the nursing home was liable for her injuries because it had failed to place an alarm on her bed to notify staff when she got up. She argued that nursing homes have a responsibility to install alarms on the beds of dementia patients who have a tendency to wander. The Plaintiff sought recovery for damages for her past and future pain and suffering. The lawsuit was settled for $110,000.
  • A Schenectady County nursing rehabilitation center resident in her 80s rose from her wheelchair and fell, suffering a subdural hematoma. She died two weeks later. The resident had fallen several times in the facility during the previous year, sustaining bruises, abrasions and a fractured pelvis. Two surgeries were required, including a hip replacement. The estate alleged that the resident had a history of getting out of her wheelchair while unattended, that she was often left unsupervised and that staff had been repeatedly alerted to these dangers by decedent’s daughter. The complaint further alleged that the facility was understaffed, had documented understaffing in their records, and that the nurse charged with decedent’s care was not in the area when she fell. The jury awarded $275,000 in wrongful death damages and medical costs.
  • In Rensselaer County, a 63 year-old nursing home resident sustained a hip fracture when he slipped and fell on urine while attempting to go to the bathroom. The plaintiff alleged a long history of incontinence and that the defendant had failed to provide adequate supervision. The plaintiff was found 5% negligent and the jury award was reduced to $1,677,835.
  • A 51 year-old man fell out of his wheelchair and fractured his hip while residing at a New York County nursing facility. Plaintiff’s counsel argued that the standard of practice in nursing homes requires enactment of a fall-prevention plan when a patient arrives at a nursing facility, and that the plan must be revised when the person’s health or circumstances change. Plaintiff’s expert testified that the fall-prevention plan was never revised despite five falls before the one that broke the plaintiff’s hip. The expert further contended that the facility should have investigated each fall, performed an in-depth assessment of the plaintiff’s condition, and provided new safety equipment such as wheelchair tipping guards, bed brakes and sitting pads. Instead, the facility merely recorded each fall without investigating or taking proper measures to prevent future falls. The jury awarded plaintiff $275,000 in damages for pain and suffering.
  • Plaintiff, age 78, was a resident of a Bronx nursing home when she fell and suffered fractures to her arms, hip and pelvis. Plaintiff’s husband sued the facility’s operator, alleging that plaintiff’s residency included 18 incidents involving falls or unexplained injuries. The lawsuit further alleged that the facility had failed to properly report and document each incident, and that the staff had ignored orders that plaintiff receive constant supervision. The lawsuit detailed 100 errors on the part of the facility constituting violations of federal and state and/or local statutes. The jury awarded plaintiff $500,000 in damages for deprivation of her rights, damages for past and future pain and suffering, and punitive damages.
  • A 90 year-old resident of a Rockland County nursing home fell to the ground from her bed and fractured her hip. She died from unrelated causes while the trial was pending. The estate contended that the facility had been deficient in the hiring, training and supervising of its medical staff, failed to ensure that the resident’s bed was equipped with the proper bed rails, neglected to adjust the bed’s position at a reasonable height, and failed to perform routine checks on the resident. The lawsuit was settled for $300,000.
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Nursing Home Slip and Fall Injuries: Not Your Typical Slip and Fall Claim

When we place an elderly loved one in a nursing home we do it mainly because he or she cannot be safely and properly cared for at home. We expect the nursing home staff to carefully evaluate the needs of each individual resident, to develop a specific and comprehensive care plan, and to make sure that the plan is implemented and revised as needed. One of the nursing home’s major responsibilities is to prevent each resident from sustaining an injury by falling.

Ordinary slip and fall claims are brought against property owners who fail to maintain safe premises or who place an object or substance on the property which causes a person to injure himself by slipping and falling. In such cases, the key task of the personal injury lawyer is to determine the condition, object or substance that caused the fall. Nursing home slip and fall cases are far more complicated.

Special Considerations For Nursing Home Slip And Fall Claims

Attorneys who handle slip and fall claims against a nursing home must be aware that elderly people are especially vulnerable to serious injury by falling. The lawyer must also be skilled at analyzing all possible causes of the fall, including the actions, or the failure to take action, by the nursing home staff. In traditional slip and fall cases, failure to show the specific defect, object or substance on the property that caused the fall will, most likely, terminate the case unsuccessfully. In contrast, a nursing home’s liability in such claims may stem from a variety of factors, many of which are not readily observable or understood.

According the Centers for Disease Control, nearly 16,000 people die each year as a result of falling. Close to 2 million are treated in emergency rooms for slip and fall injuries. Falls are the second greatest cause of accidental death in persons 65 to 84 and the leading cause of accidental death for those 85 and older. For most senior citizens, a fall can be devastating. Osteoporosis, or brittle bone disease, can heighten the risk of serious fractures, especially hip fractures that can be fatal or severely disabling. In addition to broken bones, an elderly person who falls may suffer critical or fatal damage to the brain or spinal cord.

In nursing homes, more than 60 percent of residents will fall at some point during their stay. Some of them will experience repeated falls. At times, a fall can be easily prevented-by properly drying wet or slippery floors, installing good lighting, fixing holes or other defects on the property, maintaining wheelchairs and bed rails, and following safety procedures when transferring residents from beds to wheelchairs. At other times, the cause of the fall is harder to pinpoint. An attorney who is knowledgeable about nursing home injuries will know to look for other ways in which the facility and staff may have been negligent, especially in terms of how they address the particular needs of individual residents.

Consult An Attorney

A nursing home slip and fall case is different from any other claim in which an individual sustains an injury by falling. To understand the rights of a loved one who has been hurt by a fall in a nursing home, it is important to consult an attorney who is knowledgeable and experienced in this type of claim.

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Going Up? Proper Elevator Maintenance Is Critical

In tough economic times, building owners and managers looking for ways to cut costs may be tempted to forego routine maintenance on public or freight elevators. It may seem that since the doors are still opening and the car is going up and down without difficulty, nothing needs to be done.

This is simply not the case – behind-the-scenes technical and mechanical components need regular examination to stave off problems. Monthly or quarterly inspections can ferret out damage done by vandalism, improper use, wear-and-tear and power supply variances, preventing minor defects from growing into major flaws.

Skipping regular checks on any highly complex mechanical component (anything from cars to elevators) may save a few dollars in the short term, but it is not without risk. The added personal injury and property damage expenses resulting from a lift system failure can be catastrophic, and these accidents can be life-altering for the victims involved.

Tragically, the United States Bureau of Labor Statistics and the Consumer Product Safety Commission report that nearly 20,000 people are injured each year in elevator/escalator accidents; of those, 30 lose their lives.

What Are Common Causes of Elevator Accidents?

The blanket term “negligent maintenance” encompasses a wide range of actions or omissions, any one of which could result in a mechanical failure and accident. Defective mechanical or electronic parts can also be at fault. Examples of common causes include:

  • Neglecting to clean door fitting or the tops of cars and equipment rooms can allow dirt to build up in the system and impede proper operation
  • Failing to oil or grease cables and braking systems
  • Not installing or maintaining emergency features like an alarm, stop button, smoke detector and intercom/phone
  • Failing to have back-up power systems for brakes and operational systems
  • Allowing wires to fray or not regularly checking connections, creating the potential for shorted wires to cause fires
  • Defectively designed or manufactured gears, door mechanisms or car boxes that can fail may be unreasonably hazardous or may not fit together properly
  • Not posting weight limit signs, allowing passengers to inadvertently overload it

If you or a loved one has been injured in an elevator accident, you should contact an experienced personal injury attorney in your area to learn more about your legal rights and options.

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