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Barrister Bits - December 2012 - Wheel Stops... Friend or Foe? Part 2

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Barrister Bits - December 2012
Wheel Stops... Friend or Foe? Part 2

by Debra A. Newby

This column is the second installment of a two-part series. In last month’s column (check it out at www.sonomacountygazette.com), we introduced the legal dilemma . . . property owners are reluctant to remove the arguably dangerous creatures because of fear of lawsuits if a car does not stop in time and injures a patron. Pedestrians trip and fall over the wheel stop and are injured, sometimes quite seriously. Last month we also looked at how building codes and industry standards view the cement stops.

 In this column, we will look at the issue from the perspective of the injured pedestrian. What rights/options do you have if you trip, fall, and are injured? First, one has to realize that California is a “pure” comparative negligence state. The concept is based on the principle of individual responsibility.  Under a pure comparative negligence standard, the plaintiff (the injured person who sues the property owner) can recover damages even if he/she is found to be more than 50% at fault. This is an important concept, as the plaintiff can “win” even if he or she is more that 50% at fault, unlike in other states where if the plaintiff is found to be more than 50% at fault, he or she takes nothing.     

For example, if the plaintiff/pedestrian trips on a wheel stop in a California parking lot, and it is later discovered that the pedestrian was inattentive due to talking on a cell phone in one hand and juggling Holiday gifts in the other (support your local shops in the enclosed Guide!), the jury may find that the plaintiff is 60% at fault (with the property owner being 40% at fault). Thus, if the settlement or jury award is $100,000, the plaintiff’s recovery will be reduced by 60%, so that the plaintiff will receive $40,000.  

In trip and fall cases, especially those dealing with a dangerous property conditions, the plaintiff should be prepared to deflect allegations that they were also negligent. Below are some practical tips to help arm the plaintiff:

• Take a picture of the scene (i.e. the wheel stop), preferably in daylight. Is the stop broken or poorly maintained? Does the coloring “morph” into the color of the surrounding parking lot, or is it painted a bright yellow or other color? Make sure as you are taking the pictures, that you also use a ruler to show measurements and perspective. 

• Keep and safely store the shoes you were wearing. If they are flat and rubber-soled (what my Aunt Gwen called a “sensible-walking shoe”), it will increase your chance of not being found partially responsible for your injuries. 

• Talk to other patrons and neighbors. Do they know of anyone who fell before your fall? If you can prove that the property owner had actual or constructive notice of the dangerous condition, it will strengthen your chances of prevailing. 

What other steps can an injured person take to protect themselves?  First, call the property owner and report the injury. Ask that they call their insurance carrier to request that a claim file be opened. Keep in mind that if you trip and fall on government property, that you must file a claim within six (6) months of the injury. Property Owners are reluctant to report the injury to the insurance carrier, which will then open a claim file. If they are found to be liable for the dangerous condition that caused your injury, the claim will be paid under the liability coverage, which may affect their future premium rates. Liability coverage will typically pay for your medical bills, pain and suffering, and lost wages, assuming you can prove the Owner is liable or at fault.   

Another practical “compromise”, especially if your injuries are relatively minor and your medical bills are negligible, is to contact the Owner via phone or in person, and then follow-up in writing. Candidly ask the Owner to pay for your medical bills and also enclose a copy of your medical bills with your letter. Suggest that your bills be paid under the Owner’s medical payment coverage (which will still require that a claim file be opened by the insurance carrier). Typically, if the claim is paid under the medical payment coverage only, and not the liability portion, the Owner’s rates are not affected. Just know that medical payment coverage has a “cap”, typically up to $5,000 or $10,000, sometimes more in larger commercial policies.  Work with the Owner to encourage a fair and prompt settlement. Keep written records and remember to cite the ASTM Standards that discourages the use of wheel stops because of the trip hazard (see last month’s column). Also keep in mind a small claim action, if your damages are $10,000 or less. 

Absent a county ordinance or other regulatory/administrative order that “outlaws” all wheel stops and phases them out, unfortunately this arguable hazard is here to stay.     Be Prudent. Be Aware. And if you do trip over a wheel stop and are hurt, know that you are not alone, but do arm yourself with practical and legal concepts to help offset your losses. Be firm yet polite with the Owner and/or their insurance carrier . . . and don’t give up.  As Billie Jean King once quipped, “Champions keep playing until they get it right”.

 

Debra A. Newby is a resident of Monte Rio and has practiced law for 30 years. She is a member of the California, Texas and Sonoma County Bar Associations. She maintains an active law office in Santa Rosa and emphasizes personal injury law (bicycle/motorcycle/motor vehicle accidents, dog bites, trip and falls, etc.) and expungements (clearing criminal records). Debra can be reached via email (debra@newbylawoffice.com), phone (707-526-7200), fax (526-7202) or pony express (930 Mendocino Avenue, Suite 101; Santa Rosa, 95401). This legal column is a community service to generally discuss legal principles and does not create an attorney-client relationship.