Property owners have a duty to maintain premises in a safe condition. Falls caused by dangerous circumstances on the property can result in very serious injuries, such as fractured hips, severe ankle injuries and other injuries which can cause permanent injury. Falls can also cause upper-extremity injuries, such as shoulder, arm and wrist fractures, or even severe head and brain injury. To get a fair settlement you may need a premises liability lawyer.
Failure of a landlord or property owner to use reasonable care is called negligence. Improper maintenance can create a hazardous or dangerous condition which results in injury.
In retail businesses — particularly big box stores — improperly stacked merchandise, uneven walking surfaces, and employees operating mechanical trucks and carts are often causes of traumatic injury to customers. An experienced personal injury lawyer may be familiar with or be able to determine what procedures should be followed for customer safety. With this information, the attorney can help you determine if the injured shopper should bring a lawsuit. If you have questions, call or email the premises liability lawyers at Feroleto Law.
Dangerous conditions on walking surfaces — including such things as snow or ice, liquids, unevenness, improper materials, or violation of building codes — often lead to slip-and-fall injuries. If you are injured in a slip, trip, or fall accident due to the negligence of someone else, an attorney can assist you by recovering compensation for your injuries. A premises liability lawyer will conduct an analysis to determine if the evidence suggests the property owner was negligent and contributed to the injury.
Commercial properties, such as malls, plazas, stores, supermarkets, and other businesses, often have floor logs, maintenance procedures, cleanup procedures, and videos which can help prove what happened, and these can be valuable proof in a personal injury lawsuit. The following will be helpful to those who are injured or who have loved ones who were injured due to a property owner or manager’s negligence.
AT THE SCENE
At the scene of the injury, or as soon thereafter as possible, pictures of the defect should be taken; the names of witnesses should be obtained; and the injury should be reported. Often, the insurance company for the property owner will try to place all of the blame on the injured party, to avoid making payments for injuries caused by the property owner.
INFORMATION HELPFUL TO YOUR ATTORNEY
1. It is important to first start with an accurate history of the event, made as soon as possible after the accident, to get a precise understanding of how and why the fall occurred. It may also allow for the preservation of valuable evidence. Information a premises liability attorney, seeks include:
- A full description of your injuries including any marking, scarring, fractures, etc.
- A precise description of how the fall occurred. If the fall involved contamination by a foreign substance, were signs present to provide warning of the defect? (This will help to prove notice).
- Was a report filled out? Were pictures taken? Were there video cameras near the location?
- Were there witnesses to the accident, and were their names recorded?
- Could injury have been prevented? (property maintenance & construction)
- Was the injury caused by a defect?
2. You want to be able to provide the attorney with enough information to accurately identify the site of the injury so he or she may inspect any defects on the premises. It is important to examine the surface where the slip occurred and to determine the type of contamination, if liquid, or whether elements such as ice or standing water were present on the surface at the time of the fall. Similarly, when a surface is irregular, you may have tripped over unevenness that was difficult to see, leading to the injury. In these cases, the attorney will want to know the measurements and type of the irregularity and will compare it to municipal policies and codes or regulations to determine whether such an irregularity is considered reasonable or is a violation of a regulation, ordinance or industry standard.
3. If it appears the incident was related to any elements of the weather, the attorney can consult the ASTM (formerly known as “American Society for Testing & Materials”) F2966-13. The guide covers appropriate snow- and ice-control procedures. It is intended to endorse well-known methods that create reasonably safe walkways where snow and ice may affect the safety of pedestrians. The guide explains basic steps that ensure pedestrian safety on walking surfaces, including:
- Making sure walking areas are in good repair.
- Keeping all areas free of trip hazards.
- Correcting low areas and drainage flow problems.
- Preserving slip-resistant properties on surfaces.
- Installing roof downspouts in a manner that directs water flow away from walking surfaces.
- Planning with proper anti-icing and de-icing products and methods.
- Storing removed snow and ice in areas that avoid obstructing drains, downspouts or walkway drainage features.
- Storing removed snow and ice in a manner that prevents a slip hazard upon melting or refreezing.
- Keeping stairs, ramps, handrails, and side rails clear of snow and ice.
- Monitoring and treating walkways in case of refreezing.
The use of this guide will help to determine if these safety procedures were followed.
WALKING SURFACE STANDARDS
4. Another useful tool an attorney may consult is ASTM F1637-95. It covers design and construction guidelines and minimum maintenance criteria for new and existing buildings and structures. The ASTM standards are intended to provide reasonably safe walking surfaces for pedestrians. Some of the standards described in ASTM 1637-95 are:
- Painted walkways shall contain an abrasive additive, cross-cut grooving, texturing, or other appropriate means to render the surface slip resistant when wet.
- Interior walkways that are not slip resistant when wet shall be maintained dry during periods of pedestrian use.
- The surfaces of adjoining walkways shall be made flush and fair.
- Carpet shall be maintained so as not to create a hazard. Carpet shall be firmly secured and seams tightly maintained. All carpet should be free of worn areas, holes, and wrinkles.
- Shag-style carpet shall not be used on stair treads.
- Mats or runners shall be provided to ensure that building entrances and interior walkways are kept dry. The mats or runners shall also be used to help remove foreign particles and other contaminants from the bottom of pedestrian footwear.
- Illumination of walkways shall be designed to be glare free and avoid casting of obscuring shadows on walkways.
- Exterior walkways shall be slip resistant and repaired or replaced where there is an abrupt variation in elevation between surfaces.
- Avoid stairway design with “distracting” forward or side views (for example, those with advertisements or store displays).
- Doors shall not open over stairs.
- Short flight stairs shall be avoided where possible. Gratings located in foreseeable pedestrian walkways shall not have openings wider than ½ inch in the direction of predominant travel.
- Use of visual cues such as warnings, accent lighting, contrast painting and other cues are all effective controls of safety, but do not necessarily negate the need for safe design construction.
It is important to note these guidelines may not be adequate for those with certain mobility impairments; if you have such needs, it is essential for the attorney to also consult codes such as the American with Disabilities Act (ADA) regulations.
5. An attorney should also refer to local building codes to ensure these were properly monitored by the property owner, such as the New York Fire, Building, and Property Maintenance codes. Some codes commonly applicable to slip-and-fall injuries include:
- Property Maintenance Code §§ 101, 102, 106, 301, 302, 306, 501, 507, 701, &
- Building Code Ch. 10 Means of Egress §§ 1003, 1006, 1007, 1009, 1010, 1012, 1013, 1017, 1021, & 1023.
- Building Code Ch. 11 Accessibility §§ 1103, 1105, 1106, & 1109. Fire Code Ch. 10 Means of Egress §§ 1023, 1024, 1025, 1028 & 1029. Many cities, towns and villages also have their own applicable codes which should be referenced as well.
For example, Town of Cheektowaga Art. II Sidewalk Specifications § 210-14 Maintenance, repairs & removal of snow, ice and other materials from sidewalk by owners provides as follows: “The owner or occupant of any premises adjoining any street where a sidewalk has been laid shall maintain and keep the sidewalk on such street in good repair and free and clear of snow, ice, dirt and any other material, obstruction or substance. The owner and the occupant shall be jointly and severally responsible for compliance with the provisions hereof. Said responsibility shall include liability for injuries that result from failure to maintain, repair and keep said sidewalk in a safe condition for usage, or to remove, snow, ice or other obstructions therefrom.”
6. Another consideration is grade. Graded walking surfaces are more hazardous than flat surfaces. A grade with snow or ice on it is more dangerous than a flat surface with ice or snow on it because of the vectoring of forces. The ASTM sections mentioned above are a helpful tool in assessing whether the drainage, lighting, and construction were reasonably adequate to ensure safety.
7. For incidents involving stairs, the attorney will look at surfaces — for example, to determine whether they are non-slip. He or she will also look at defective step geometry, width of steps, and conformity of railings to regulations. Lack of railings or improper railings are also common causes of slips or falls. It is the property owner’s responsibility to ensure that any necessary railings are adequate.
8. Review of the illustrations from regulations in regard to stairs and ramps can also be helpful. (See ADA requirements below)
9. In a lawsuit, an attorney should be sure to obtain records from the property owner/manager of the location of the accident. It may be necessary to subpoena the records.
ADA STANDARDS FOR ACCESSIBLE DESIGN 28 C.F.R. PART 36
The Americans with Disabilities Act (ADA) sets forth standards for numerous aspects of building design and construction for handicap accessible buildings, including the following:
- Increase in grade may be made by vertical step only when 1/4 inch or less.
- The least possible slope shall be used for any ramp, and maximum slope, rise and clear width
- Ramps must have level landings at bottom and top, and dimensions are specified. Handrails are mandatory on some ramps, and required features are set out in the code.
LEGAL HELP AFTER A FALL
As you can see, an injury from a fall isn’t necessarily an “accident.” It is essential to look at the cause of the fall, starting with an accurate and detailed history from the injured party which allows attorneys to efficiently advance through a thorough analysis of the event. Early preservation of evidence through photographs, measurements, and inspection is helpful for analysis. Review of relevant codes and industry standards will bring focus on the cause of your injury. Improper lighting, lack of warning, improper water flow, improper drainage, insufficient or weathered mats/carpets, improperly maintained surfaces, and unexpected level changes can all cause injury.
If you have questions about an injury on a property, you should call a personal injury attorney familiar with dangerous property lawsuits. Can call or email the experienced premises liability lawyers at Feroleto Law at 716-854-0700.