May 28, 2018
by Debra Newby, Newby Law
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DEAR READERS: Do you have a legal question on your mind? If so, please email me at firstname.lastname@example.org. Your name will remain confidential. This Q & A Legal Column is intended as a community service to discuss general legal principles and does not create an attorney-client relationship.
My cousin was visiting our beautiful area and so I treated him to an afternoon at one of our “hamlets” in West County. Just as we were leaving a gift shop, he tripped over an uneven part of the sidewalk, fell, and broke his wrist. He will need help paying his medical bills. What are his legal options? Is the shop owner responsible?
Signed: Concerned Cuz
Bummer. What a bad break for your cousin. Your question is quite straightforward. The answer, as with most legal issues, is quite complex. In essence, you have tapped into an area of tort law that is classified as a premises liability case. I will first give a brief primer on premises liability law, and then follow with some pointers that may be helpful.
Generally, the plaintiff (the injured party—your cousin) must prove that a dangerous condition exists on the premises, creating an unreasonable risk of harm. Your cousin must also show that the owner of the property knew or should have known of the hazard or dangerous condition. Trip/Slip and Fall cases are by their nature difficult cases, as the defense will always try to allege that the injured party was simply not paying attention when they fell, and will argue that the plaintiff is partially or totally responsible. Rephrased in legal lingo, the defense will allege comparative negligence, i.e. that the plaintiff is responsible for their injuries (based on a percentage of fault).
However, the property owner is not totally released from all legal responsibility. Under California law, the owner of a property has a duty to inspect and maintain the premises to make sure it is free of any hazards or any dangerous conditions.
Now, when it comes to trip/slip and falls on sidewalks, a few special rules come into play. Uneven sidewalks are very common, especially if they are tree-lined. A mere crack or uneven rise in the sidewalk may not be enough. In order to prevail, the condition that your cousin tripped over must be a “significant defect”. The courts will look to a quantifiable measure, for example, whether the crack or rise was at least two inches. Next, you must determine who owns the sidewalk, which will require some investigative work. You may have to actually research the property lines with the Sonoma County Recorder’s Office. You cannot presume that the sidewalk belongs to the gift shop. It may be owned and maintained by a third party.
As a practical matter, I would suggest the following tips for your cousin:
1) Return to the scene and take pictures, with a ruler to show perspective, so you can get an idea if the defect is significant. You may have to lay or bend down at ground level to get the right perspective (and make sure the lighting is good);
2) Make sure your cousin saves the shoes that he was wearing when he fell. They will be key evidence should he decide to proceed with a claim or lawsuit against the property owner; and
3) If you believe that a significant defect can be proven, then your cousin should consult with a reputable personal injury lawyer. If he wishes to proceed on his own, at the minimum he will need to put the property owner on written notice of the injury and ask that they open a claim file with their insurance company. Most commercial insurance policies have “medical payment” coverage that will help offset your cousin’s medical bills. (But be forewarned, the “med pay” limits are typically very low, like $5,000 to $10,000 versus the liability limits which are substantially higher.)
I hope your cousin is on a path to recovery. I am sure the experience was challenging for him but as Roger Crawford quipped, “Being challenged in Life in inevitable; being defeated is optional”.
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