Momentary Forgetfulness

“I fell in the parking lot of a bagel store that I frequently go to.  I tripped and fell on a piece of chain link fence that sticks out that I have walked by a thousand times with falling.  Can I still make a claim against the parking lot for my injuries?”

The short answer is yes. But as you have already figured out there will be some problems with your case.

The first issue is the size of this piece of fence.  If the broken fence piece is really small (say less than 1/2 inch), the owner of the parking lot can claim the legal defense that the condition is de minimus.  That is, no reasonable person could possible fall on such a small defect. If this broken fence piece is really big (say bigger than 6 inches) the owner of the parking lot can claim the legal defense of open and obvious.  That is, everybody who walks by the defect should see what was there to be seen and avoid the foot trap.

I am inferring from your question that your case is the second fact pattern I mentioned. Fortunatley for you, even if you knew about the condition and should have avoided it, you can legally claim that you had momentary forgetfulness about the broken fence and had tripped anyway.  It is not expected that a person will have to remember every time they walk that there is a known defect.  Sometimes people just don’t look and don’t remember a known hazard in their path.  It is up to the landowner to repair defects.

It is impossible for me to say how your case will turn out.  The Court of Appeals has been very explicit that there is no specific test to determine if a defect is too small or too obvious. There are many circumstances the court would consider, not just the size of the defect. You have a good legal argument for your case, but the parking lot owner also has a good legal argument as well.

Falls On Commercial Property

“I fell inside of a mall on a staircase, the insurance adjuster for the mall was very nice at first, but she still hasn’t paid my medical bills after a year.  What can I do?”

Depending on what happened, there may be something you can do to get your bills paid.

First, I will assume for purposes of this question that your accident happened in New York.  In New York, the statute of limitations is three years for negligence cases, so you could file a law suit for  recovery of your medical bills, lost wages, and pain and suffering.

Second, you will have to be more specific about the reason that you fell.  If the stairs were broken, you would be able to recover.  If there was something wrong in construction of the stairs (such as misleveling), your attorney may have to hire an engineer or architect to look at the stairs to see if there was some violation of the building code in their construction.

Third, if you fell because of something on the stairs such as food or some other foreign substance, the case becomes more complex.  As the injured party, you have the burden of proof to show that the condition was was created by the land owner or existed for an unreasonable period of time.  If someone was mopping and left the staircase wet with no signs warning of the condition, the land owner is responsible.  However, probably one the most litigated questions occurs when a third party leaves a hazardous condition on stairs for an “unreasonable” period of time.  Quite frankly, there is no consistent answer among courts about what is a “unreasoanble.”  One person’s unreasonable is another person’s  reasonable.  There are only some guiding priciples which a judge or jury will try to follow to the best of their ability.

Fourth, under New York law you, as a pedestrian, have a duty to see what there is to be seen.  In other words, if you could have avoided the accident, you should have.  Unfortunately, a judge or jury get the benefit of hindsight, and they find if you are partly or totally responsible for the accident based on what you should have seen.

Finally, you have already given a statement, so your story (even if the story is not complete or you were misled by the questions you were asked by the adjuster) is already set.  That bell cannot be unrung.  The purpose of the insurance adjuster is to try to get admissions out of you to help the insurance company defend the case.  Even if the adjuster seemed nice, they are only doing their job.

People are more willing to talk to an adjuster if that person is nice and they seem like they want to help you.  That is why we advise people not to give recorded statements until they consult with our office.  We advise people to tell the truth, but we also advise people about traps the adjuster may set to help the insurance company.