A PRACTICAL GUIDE TO PROSECUTING the PLAINTIFF’S PREMISES LIABILITY CASE
By Kevin J. Finnegan
A premises liability case can be one of the more interesting and challenging cases for the personal injury practitioner. These cases usually involve some unique facts and serious injuries. Our firm has had the privilege of representing clients injured by fires, children injured by dangerous conditions in their apartment buildings, and clients injured by slips/trips and falls due to hazardous conditions. If you litigate one of these cases, you will likely encounter experienced defense counsel as most of the commercial insurance carriers hire the more experienced and skilled defense firms. This article discusses common issues one will face when seeking just and fair compensation for a plaintiff who is injured by the negligent acts or omissions of a property owner, store owner, landlord, property management company, or any of their respective employees, servants or agents.
Case Selection: As with every potential case, the decisions surrounding case selection are extremely important. Some premises liability cases, such as toxic mold or lead poisoning cases, should be referred to, or co-counseled with, attorneys who have training or experience with issues specific to these cases. Other types of premises cases have unique legal hurdles. For example, if your potential new client slipped and fell on ice, don’t invest your time or money until you read Morgan State University v. Walker, 397 Md. 509, 919 A.2d 21 (2007). In Morgan State, the plaintiff attempted to deliver money to her daughter’s dormitory after a 22 inch snow fall. She testified she pulled into the parking lot and drove on crunchy ice and snow. There was no attempt by the University or anyone to clear the snow or ice or to make the parking lot safe. The plaintiff exited her vehicle and specifically observed snow and ice on the ground between her vehicle and the dormitory. She traversed the ice and snow and made her way into the dormitory. On the way back to her vehicle, she fell and was seriously injured. The Court of Appeals upheld the entry of summary judgment for the Defendant finding that the plaintiff assumed the risk of injury as a matter of law. Id. This holding of this case makes it very difficult, if not impossible, to prevail where the injured person slipped and fell on visible ice which they knowingly confronted, no matter how egregious the property manager or owner’s negligence may be. If the potential case is based on a theory of negligent security, you must read Smith v. Dodge Plaza Ltd. Partnership, 148 Md. App. 335, 811 A.2d 881 (2002) or University of Maryland Eastern Shore v. Rhaney, 159 Md. App. 44, 858 A.2d 497 (2004), aff’d, 388 Md. 585, 880 A.2d 357 (2005), before determining whether you can proceed with the case.
Early Investigation: Early investigation is a must. A site visit by the attorney is invaluable and should occur as soon as possible so you know where to begin your investigation. Many commercial carriers hire third-party adjusters (TPAs) who conduct a fairly thorough investigation once they learn an injury occurred on the premises. In addition, property management companies are usually clever enough to begin eliminating evidence of the dangerous condition. Therefore, it is critical that video or pictures must be taken immediately in order to document the nature of the dangerous condition before any remedial measures or repairs are undertaken.
It is best to hire an experienced investigator to conduct your investigation and it may be costly. These cases require a financial investment by the lawyer and if he/she is unable to advance those costs (assuming the client doesn’t have the resources to pay them), they need to bring in co-counsel who will. Don’t assume the witness in the apartment “next door” will be there later or will be eager to “get involved” once visited by the property management company before your investigator gets to them. Where the case involves an injury at your client’s apartment complex, whether it be in the stairway or outside in the parking lot, other residents and neighbors of your client may have important information relevant to the notice issues in the case. For example, in a trip and fall case, did the neighbor down the hall previously report the defective hand-railing or broken step to the landlord? In a fire case, did the neighbor tell the landlord fire extinguishers were missing in the hallway or that an emergency fire exit was blocked?
Determine Your Client’s Status: the duty of care owed to your client will of course depend on their status on the property. See, Generally, Maryland Pattern Jury Instruction No. 24:2. While in most premises cases that a personal injury practitioner confronts involve a client who is invited on the premises to conduct business which profits the landowner or possessor, or are an invitees by virtue of being a resident on the premises, one must still examine this issue. Was your client on the lease agreement for the apartment? Or were they living there without the landlord’s knowledge or by virtue of a sublease arrangement which violated the lease agreement? To determine your client’s status and how it may affect the duty owed, one should read Wagner v. Doehring, 315 Md. 97, 553 A.2d 684 (1989), on remand, 80 Md. App. 237, 562 A.2d 762 (1989) (definitions of invitee, social guest, trespasser and bare licensee); DeBoy v. City of Crisfield, 167 Md. App. 548, 893 A.2d 1189 (2006) (discussion of business invitee); and Howard County Bd. Of Educ. v. Cheyne, 99 Md. App. 150, 636 A.2d 22 (1994) (discussion of invitee by implied consent).
Hire An Expert Early: Once it becomes apparent you will be unable to reach a settlement of your client’s case and litigation is necessary, you need to decide what, if any, liability experts are necessary to testify to the standard of care. Do you need an expert to testify to the standard of care for a property management company where your client is injured at an apartment complex? If the child you represent is injured in a playground at their apartment complex, do you need a certified playground safety inspector? If your client slipped and fell on ice at a community center, do you need an expert in facilities management to testify about weather conditions and what precautions should have been taken to make the property safe for guests? In a fire case, you will almost always need a fire protection engineer and/or certified fire investigator.
In addition to providing standard of care testimony, your expert will help you in the discovery part of the case. Ideally, you should have a discussion with your expert before filing your lawsuit and drafting discovery requests. You should ask your expert what they need to know about the standard practices and procedures at the business premises. Most experts will have a list of things they need you to inquire about during discovery. You should use this information to draft your written discovery requests and serve them with the Complaint. In addition, you need to consult with your expert before you take the deposition of a corporate designee or organizational representative. It may also be a good idea to have your expert present, at least by phone, during such a deposition to assist you if you are dealing with a certain type of premises liability case for the first time.
Research Standards, Codes and Regulations: the standard of care may often be defined by written industry standards (i.e. ANSI or ASTM), fire or building codes, by federal or state regulation or in county codes. In a fire case, you will need an expert to determine whether the state or county fire code is applicable and how each may apply the nationally accepted codes (i.e. NFPA). In a trip and fall case, you need to examine if there was some violation of a county code or the building code by determining what portions of the nationally recognized code promulgated by the Building Officials Conference of America, Inc. (BOCA), or the International Building Code (IBC), were adopted in the jurisdiction where this occurred. If your case involves negligent maintenance on the property, you should determine if the standards set forth in the International Property Maintenance Code (IPMC) could be helpful. In a case involving injury to a child in a playground, you need to obtain written standards and materials from the National Park and Recreation Association (NPRA) and National Playground Safety Institute (NPSI). This list is not meant to be exhaustive and you should consult with your liability expert regarding what written standards and materials could be utilized at trial to explain the standard of care to the jury.
Formulate A Discovery Plan: A discovery plan is crucial in every case but I believe it is especially important in a premises liability case. I can’t think of one premises case that I’ve handled where a motion for summary judgment wasn’t filed in the case by the defense. If you don’t have a plan in place for obtaining facts to support each element of your claim, you will likely lose the summary judgment motion. Since the types of premises cases vary, here are a few basic ideas: (1) you should start by researching the property in the local jurisdiction where it is located. I once had a case where the apartment building actually had no occupancy permit; (2) learn as much as possible about the landowner, property manager, landlord, storekeeper or contractor. Do they have a website? (3) find out early in discovery if there are any contractors which could also be liable and then bring them in immediately to avoid any statute of limitations problems; (4) If your client is injured because of construction nearby or on the premises, pursue all documents filed with the county (construction) permitting office so that you can discovery all contractors on the job and the general rules/requirements of the construction site; (5) find out the identity of all employees employed at the premises as of the day of the occurrence and within a reasonable period of time before and after so that you can discovery what, if anything, they know about the dangerous condition, the incident, or standard practices and procedures at the premises; and (6) inquire about all standard practices and procedures at the premises (i.e. for inspection, maintenance, etc.) so that you can determine which ones were violated. Whenever possible, you should always inquire about which well recognized and accepted “rules” at the business premises were violated by the negligent party(ies).
Conclusion: Hopefully these suggestions will help guide you through some of the issues that are unique to premises liability cases. Obviously, every case is different in its own way and must be prepared accordingly. However, thinking through some of these basic issues may help you to achieve fair compensation for your seriously injured client.
Kevin J. Finnegan is a partner in the law firm of Goldberg Finnegan, LLC, located in Silver Spring, Maryland, and he represents clients in Maryland and in the District of Columbia. His practice areas include motor torts, personal injury, premises liability, and medical malpractice.