I've Got Gas

There was an explosion at my house a few nights ago. My wife decided to operate the grill and make us dinner, when normally the grilling is left to me. Our grill is a gas grill, and my wife neglected to shut the propane tank's valve after she was done grilling our chicken and corn. This obviously presents a problem since we routinely eat outside on our deck and light citronella candles to keep the insects away. In case you missed the visit by the local fire department on Safety Day in first grade, propane gas and an open flame mix about as well as oil and water.

While I do spend a lot of time in my office, I lucked out in not having to live there this week. I was able to fortuitously discover my wife's omission before the back half of our house disappeared in a ball of flames. When asked why she did such a thing, she replied, "I forgot." I will say, I did not handle this marital situation with the most diplomatic approach, and hence the "explosion." I hope my wife is not reading this, as it's still a touchy subject.

Like my wife, many of us often overlook things throughout the course of our days, weeks, and months. These things might be trivial, such as forgetting to buy stamps. Or, they might be substantial, like forgetting to shut off an explosive gas source less than 10 feet from an open flame and the back of one's humble abode. We often don't mean to, but in today's society life is fast-paced and things get overlooked.

Litigation is unfortunately not a quick process. Sometimes, depositions occur over a year or even two after a collision. Trial can be even further away. It's not uncommon for many of my clients to forget details about the collision, their medical treatment, and how it affected them.

Forgetting things is not in and of itself a problem in litigation. We have resources like recorded statements, client interviews, accident reports, and medical records to help refresh a client's memory. What I find clients have the most difficulty remembering is the pain and suffering they endured. As time passes, they forget what the pain felt like and their daily struggle to deal with it.

The passage of time and the forgetfulness it often brings presents a problem in this area. Pain and suffering comprises a large portion of a case's value, but that value doesn't amount to much when all the client can articulate a few years later is that they couldn't do "stuff." Stuff doesn't equate to monetary compensation in a juror's mind. It equates to "who cares?"

A jury will likely not be inclined to put a premium on your pain and suffering if you cannot articulate what you went through. I find that my clients tend to lose the ability to articulate the details as time passes. Hopefully, the client has contacted us sooner rather than later and we can document what the client tells us they are going through as they recover from their injuries. Sometimes, however, that doesn't happen.

If you have been the victim of someone's negligence, it is important that you strive to remember what you had to go through during your recovery as time passes. All of us have different methods to remember different things, so you should do whatever works best for you. The most common method I find clients utilize is keeping a diary, which is often a good resource later down the road. It should be noted, however, that there is precedent in North Carolina that suggests that such a diary is not necessarily considered "work-product," so you should keep in mind that diary may one day been seen by someone other than just you and your attorney.

The ability to recall how your injuries affected you is crucial in a personal injury case. The more details you can provide as to how your life was affected, the more fuel your attorney will have in arguing to the jury on your behalf.

Disclaimer: The views of the author are his own. This blog post is not intended to convey any specific legal advice upon any specific individual. The author's wife is in good company. In his hometown, the local fire station once burned down because the firemen forgot to turn off the stove when they went out on a call. The ironic humor still makes the author chuckle. Gasoline, natural gas, and oil are dangerous substances that should be handled with absolute caution. This is especially important to remember if you're British Petroleum.

Thinking Caps

Sometimes, we say things without thinking the statement through. For example, once my wife asked me that annoying and baited question, "Does this make me look fat?" Surely, somebody with as much education and training in "quick thinking" as myself wouldn't answer this question incorrectly. "A little bit," was my response. I'm still not sure why I said it, but I am quite sure I didn't fully think my response through before uttering it. I didn't think about the silence, the icy stare, and how uncomfortable the couch can be to sleep on.

I once had a client who testified, "I don't remember" in a deposition. The answer to the follow up question was, "I don't know." These are not inappropriate responses in a deposition. However, they are perplexing responses when the two questions being asked are, "How old are you?" and "What is your birth date?" The client was nervous, and unfortunately he didn't think his answers through. And again, I really can't make this stuff up.

Currently, a battle is being waged in the North Carolina General Assembly. Citizens, special interest groups, and many lawyers are fighting to replace North Carolina's doctrine of contributory negligence with the doctrine of comparative negligence. North Carolina is one of only four jurisdictions in the nation that still has this antiquated and harsh law. It essentially holds that if an individual is even slightly (as little as one-percent) at fault for their injuries then they may recover nothing as a matter of law. The vast majority of the country reduces the award by the amount of the injured individual's negligence assuming that contribution is not more than fifty percent. The insurance industry is strongly opposed to this fairer and more just law.

Across the State there have been many letters to the editor published concerning contributory v. comparative negligence. The op-ed pieces have been interesting, and the responses even more so. What I find interesting as well are the collateral matters that are being mentioned in these op-eds and editorial comments. In the Beaufort Observer's May 18, 2010 piece on the subject, the author closes his examination of the issue with a suggestion that we should "rein in the John Edwards awards to lawyers, both in personal injury and in medical malpractice."

This is nothing I haven't heard before. Citizens routinely bemoan the much publicized "excessive" personal injury awards given to individuals in courts across the country (of course, you rarely hear about the stories where laws like contributory negligence fail our citizens, which you can read about by clicking here). Caps on awards in personal injury and medical malpractice claims are routinely brought up in the Tort Reform debates that have taken place across this country for many years now, and a lot of individuals seem to support them.

I have to wonder, however, whether the people who advocate for caps on compensatory awards really think their statements through before making them. So, let's put our thinking caps on and explore a hypothetical:

An individual is driving down a two lane highway. A car approaches from the opposite direction, being driven by a person named Negligent Nancy. Nancy is driving above the speed limit and is talking on her phone. She drops her phone due to her greasy fingers from the fries she's eating on the go as well, and reaches over into the adjacent seat to retrieve it. In the process of doing so she crosses the center line and collides head-on into our individual. The cars mangle and tangle, and both drivers have to be pried out and airlifted to the local hospital.

Our individual spends over two weeks in the ICU suffering from shattered legs, a shattered pelvis, broken ribs, and various torn muscles and ligaments throughout their body. They have deep lacerations across their face and chest from the broken windshield glass flying in their face. After being discharged from the ICU, our individual spends another six months in the hospital and various rehabilitation facilities. Their medical bills top the $300,000.00 mark.

Our individual's bruises and fractures heal and the plastic surgeon tells them that the scars will one day fade "a little." What will not heal, however, is the damage to their spinal column. Our individual will never walk again. Our individual files suit against Negligent Nancy to recover for their medical bills and harms and losses.

Our individual and Negligent Nancy live in the State of Injustice. Injustice places a cap on compensatory damages of $100,000.00 over the medical bills. This is what the jury awards our individual, the full medical bills and the full amount they are allowed to award by law for pain and suffering.

You may say, "So what? No amount of money will ever make our individual walk again and I'd be pretty content with a $100,000.00 in the bank." You would be correct. You may also say, "I think that's more than fair." On this point, you would be incorrect.

Money will never allow our individual to walk again, but it can help them make up for what they have lost. It can help them buy a motorized wheel chair so they have easier and greater mobility. It can help them remodel their home so that it can be handicapped accessible; replacing the bath tub, toilet, installing a lift for the stairs, and installing a ramp, just among a few of the necessary renovations. It can help them buy a handicapable vehicle so they can drive and live independently. It can help ease the emotional pain that will come with never being whole again. With the social stigma and pity from strangers that they will experience for the rest of their lives. The hurt that will come when small children stare, cry out of fear, or run away from them. The hurt that will occur when their friends and family walk the other direction when they roll down the street because they're too afraid that our individual will ask them for yet more help. The hurt that will occur when their spouse leaves them because the new stress and life adjustments are just too much to bear.

You may be still asking the questions from above the last paragraph, but I hope you have the curiosity to ask another: "Who is 'our individual?'" They're your mother, father, brother, sister, son, and daughter. They're your best friend. They're your neighbor. They're your favorite coworker. They're you.

Is $100,000.00 still enough when you sit in Our Individual's wheelchair? The world is full of Negligent Nancys, and it truly could happen to you and your loved ones.

It's easy to throw arbitrary proposals out into the public forum when we don't have to live in the shoes of the serious injury victim. It's even easier when we allow ourselves to forget that what these cases are truly about is a fellow human being who has been affected for the rest of their time on this earth. It's easy to play Monday Morning Quarterback.

The jury is the cornerstone of our judicial system. Those 12 jurors are people selected from the community at random who hear the testimony, examine the evidence, and are instructed on the law by the judge. They are the 12 people who deliberate, debate, and argue all the facts of the case. They are the ones in the best position to think justice through before speaking their verdict. Let's think that through and stop playing Monday Morning Quarterback.

Disclaimer: The views of the author are his own. Nothing in this post is intended to convey any specific legal advice upon any specific individual. The author's wife is not fat. Not even a little. The author, however, has horrible dietary and exercise habits so he is not sure the same can be said of him. The author is not aware of any actual proposed legislation impleting a damages cap in North Carolina, with the exception of the cap on punitive damages currently in effect. $100,000.00 is an arbitrary amount tossed out by the author. The author may have stepped on the soapbox a little during this post. You have a right to disagree with him. The author's wife has pointed out that this post is a little more serious than the author's normal witty banter. That can occasionally happen, as pointed out by the author's dear college friend Katelyn who once compared the author to Will Ferrell in this scene from Old School:



If this comparison concerns you, you should know that the author is deeply professional in his career and role as a lawyer. However, the author does routinely remind people that life is just too short to take too serioulsy outside of the workplace.

Judging Books by Their Covers

They say you shouldn't judge a book by its cover. I feel confident in saying that "they" are authors who were paired by their publishers with really crappy cover jacket artists. We all judge one another. Some people are even lucky enough to make obscene amounts of money doing so. It's why a pair of Jehovah's witnesses asked me, "Are your parents home?" when they knocked on my door about a month or so ago. They judged by my youthful appearance that I was not old enough to own my house.

The courtroom is a place for judging, and I'm not talking about the man or woman in the unflattering robe. The jurors are the true judges in the courtroom. Fair or not, people judge one another by their appearance and their demeanor in addition to their substance. The first impression of someone is mightily important. Don't believe me? Google "Importance of First Impressions" and scan through the over 1.1 million websites devoted to helping you make a good one.

My most memorable first impression in the courtroom comes from before I was even a lawyer. I was a high school student back home in New Bern job shadowing with a local district attorney when a pro se defendant's case was called. The man began walking up to the table dressed in Timberland's, baggy dark blue jeans, and a black Bob Marley t-shirt. Completing his ensemble was a rather large gold chain necklace, attached to which was a rather large gold marijuana leaf (I really can't make this stuff up, I promise). What brought the man to court in the first place? Yep, you guessed it, a charge for possession of a controlled substance. I think everybody in the courtroom that day can sum up our first impression of this man in one word: Guilty.

In every trial preparation session, I always make a point to ask, "what do you plan on wearing?" Sometimes no further conversation on the topic is needed, sometimes I feel I need to call Stacy and Clinton. For the later situations, the trick is to get the client to dress appropriately, but also in a way that fits their personality. I don't want a landscaper to dress like a corporate executive; he'll be uncomfortable and his confidence will be gone. At the same time, I don't want him to dress in a manner that creates false impressions with the jury or shows a disrespect for the seriousness of the courtroom.

If you're facing courtroom testimony anytime soon, how should you dress? The answer is deceptively easy. You should dress comfortably, unpretentiously, and nicely. No matter what your income level or background, you have something in your closet or can find something fairly cheap at your local Wal-mart or Target that fits that description. There is no need for you to dress as if you're going to a State dinner at the White House. You need not rush off to Brooks Brothers and charge a brand new and quite frankly overly expensive suit just for the occasion. This is not a fashion show.

My wife is a big fan of accessories. Her favorite accessories are shoes. Lots, and lots, and lots, and lots, and a lot more shoes. Expensive shoes. I'm actually quite offended Mr. Cole Haan does not send me a Christmas card each year. She also likes designer handbags and jewelry as well. My experience in my fairly short life has been that most women, and even some men, like such things as well. These things are fine in your normal life, but leave them at home if you're a Plaintiff in the courtroom. Sometimes a client will look at me quizzically when I bestow this advice upon them. In turn, I simply ask them what sense at all it makes to walk into a courtroom and ask 12 strangers for money when you look like you already have a million dollars. Trade that Rolex for a Timex.

First impressions do not end with your appearance. I normally know it's time to take a day off or go on vacation when JoDee Messina's song "My Give A Damn's Busted" gets stuck in my head. If yours is busted right before trial, then you better fix it. At the very minimum act like you still care. I've had clients fall asleep and/or just plain look miserable, frustrated, and fed up in the courtroom or an arbitration hearing. The results are usually disasterous for the case. If the jury doesn't think you care about your own case, then why should they care? If they don't think you're a decent person, then why should they champion your cause in the jury room?

First impressions are important in life and we all want to make good ones. In your negligence case, the most critical first impression you can make is with the jury who will be judging you from the moment they sit in that box.

Disclaimer: The views of the author are his own. This post is not intended to convey any specific legal advice upon any specific individual. The author, sensing protest from his wife, would like to immediately state that his beautiful wife is not materialistic and buys most of her fancy things on sale. Of course, "sale" can have a rather loose meaning at Saks. To be fair, the author will state that he owns more Cole Haan shoes than his wife. That makes her mad, but the author's feet happily comfortable. The author refuses to admit that he watches anything called "What Not to Wear" and only knows of Stacy and Clinton because of his wife's obsession with TLC. If credible evidence can be produced showing that he does watch such a show regularly, the author maintains that he does not enjoy it.

Author's Note: Sorry for the long absence, Faithful Readers. My writing has necessarily had to focus on opening and closing statements recently.

For Better and For Worse

Sometimes, I scream like a little girl. I do this most frequently while riding in the passenger seat of my wife's car. When she's driving. There have been occasions when I am sitting in the passenger seat, white-knuckled and grasping the OSH ("Oh, shoot!" handle) while emitting a high-pitch scream that would make Dakota Fanning jealous. Most of these occasions involve us traveling through an intersection while the light is red for our direction of travel. Other occasions involve when my beautiful, patient, and forgiving wife gets frustrated in a parking lot and flies down the lane at 100 m.p.h. (Clearly exaggerating here, of course. Note the emphasis on forgiving, honey!). So, if you've ever heard a faint screaming similar to what you hear next to a roller coaster at the amusement park, we were likely somewhere nearby. It's a small world, after all.

It has come to my attention I may not be the only person who is sometimes afraid of their spouse's driving habits. Occasionally, individuals will ask, "Can I sue my spouse for an auto accident?" The answer is yes. North Carolina law allows a husband and wife to maintain claims against each other as if they were two unmarried individuals. So, if you are injured riding in your wife's car when she causes an accident, you can sue her to recover for your harms and losses just as you could any other individual. Items that you can recover for include (but may not be limited to) medical bills, lost wages, and pain and suffering.

Of course, these cases present unique issues from a litigation perspective. If the claim does not settle with the insurance company out of court, then litigation may be the only option in an attempt to recover. Then, among a variety of other issues, it will be your job and your lawyer's job to try to explain to a jury why you are suing your spouse. With the prohibition against mentioning insurance at trial in North Carolina, this could require considerable flexing of your creative muscles in certain circumstances.

Many people might ask, "Why would you want to sue your spouse for an auto accident?" Well, assume that the husband and wife do not have any health insurance. Also assume that there is no medical payments coverage on the auto policy. In situations like these, the couple could be faced with paying medical bills totaling $5,000.00 or more depending on the severity of the auto accident and injuries that the individual sustained. For most American families, this is a sizable chunk of change. In my experience, this couple likely will find that nobody is Neighborly, nobody is On Their Side, and they are not In Good Hands. The couple may want to file a claim under their auto insurance policy in an attempt to help alleviate the financial burden those bills place on the household. This ultimately may lead to litigation.

Married couples take a vow to stand by each other "for better or for worse." Hopefully, the years of marriage are happy ones and there are more "better" times than "worse" times. However, if you should find that an auto accident has caused one of those darker times in your marriage, then consider consulting with an experienced attorney.

Disclaimer: The views of the author are his own. This article is not intended to convey any specific legal advice upon any specific individual. The author is happily married. He hopes to remain that way. The author has considered adding this blog to the "Restricted Sites" on his wife's Internet browser, but then realized that would bring his readership down to 2 (mom & boss being the 2). The author is currently shopping online to mitigate this posting with his wife. The author loves his wife. The author's wife is the coolest, most patient, most intelligent, most forgiving, most beautiful, most awesome, etc., etc., etc. person that he has ever known and arguably that has ever existed on this planet in the history of the universe. For the record, the author's wife has never been in an at-fault accident. Her driving record is better than the author's. The author refuses to elaborate on his driving record and asserts his Fifth Amendment privilege.

On the Road Again...

I have done a lot of traveling over the past few weeks for both professional and personal reasons (one of the reasons for the conspicuous lack of postings). I continue to be dismayed by what I see during my travels, as it appears that negligent driving abounds anywhere I go. As I sit now in the safety of my home office and ponder the cornucopia of negligent acts I have witnessed over the past few weeks, I think negligent drivers can be categorized into four main areas:

1. The Bar Raiser: This is the individual who appears to have their phone permanently affixed to their head. They talk incessantly and pay more attention to the conversation than the road. They make the phone companies regret the "Unlimited Plan."

2. The Librarian: This is the individual who likes to read anything while driving except for traffic signs. The most common reading material is the text message, Tweet, Facebook update, and e-mail. However, some "old school" members of this group really enjoy their newspapers and are determined not to let a silly thing like a green light prevent them from finishing George Will's latest column. Some of the most dedicated of this group even dare to read full books while stopped at intersections. Once in a New Moon (pun intended), they may actually pay attention.

3. The Space Cadet: This is the individual who for whatever reason ponders many questions while driving and focuses on anything but the road. Their thought process may include: Who am I? Where am I? What is the meaning of life? Why are bunnies fluffy? That green light is pretty. I will sit here and admire its prettiness. Why is that man's car behind me making loud noises? Doesn't he see the green is pretty?

4. The Taser: This is the individual who does something so stupid, so careless, and so utterly befuddling that were you a patrol officer you would pull them over and summarily tase them in the face just for having the audacity to get behind the wheel.

Some of you may ask why these drivers upset me so. After all, aren't I in the business of negligence as a personal injury lawyer? To some extent, that's true. But, negligence upsets me because I'm on the road with these people. My wife is on the road with these people. My family and friends are on the road with these people. You are on the road with these people. Eventually, the odds are one of us will be a victim of this negligence, which could lead to injury or worse.

I was reading the December 2009 issue of Men's Health the other day (just slightly behind in my subscription reading) and in it was a great article by Oliver Broudy entitled "Dead Man Driving." The beginning of the article poses the following question:

"Car crashes happen to other guys, right? Maybe they don't have your quick reaction time or uncanny ability to multitask behind the wheel. Or maybe they're simply lesser drivers."

This question is such a great way to start that article (which detailed the causes and effects of a crash that left a wife widowed) because I believe its how many of us think when we're behind the wheel. I know I certainly do; when I might occasionally glance at my iPhone while flying down the interstate. I know full well that's how the four drivers described above think. It's only natural for us to be confident in our abilities with a task that is so routine in our lives.

But, consider the following statistics that the article outlined:

2: Percentage of people who are able to drive safely while multitasking. (study by the University of Utah)

78: Percentage of crashes caused by driver distractions. (study by Virginia Tech Transportation Institute)

33: Percentage of traffic fatalities that are related to speeding. (study by NHTSA)

271: In feet, the stopping distance of the average car traveling at 60 mph. That's almost the length of a football field. (Edmunds.com)

23x: Increase in crash risk if you text while driving. (study by Virginia Tech Transportation Institute)

3:00 p.m. to 6:00 p.m., Friday: Time of day and day of the week when most crashes occur (study by the NHTSA).

I find these statistics to be somewhat alarming. I hope you do as well. Negligent driving can create far-reaching and serious consequences for both the negligent driver and the victim. Each of the cases that have come across my desk can attest to that.

In my experience, should you find yourself the victim of The Bar Raiser, The Librarian, The Space Cadet, or The Taser, you'll find it to be a lonely place. Few will be Neighborly, few will Do the Responsible Thing, few will be On Your Side, and you likely will not be In Good Hands. I hope you never find yourself in that position, Faithful Reader; but, should you do please know that we're here to help.

Disclaimer: The views of the author are his own. This article is not intended to convey any specific legal advice upon any specific individual. The author does not condone, sanction, advocate, or support the unauthorized use of violence. He will occasionally enjoy a lively game of Call of Duty, but that is fantasy. Tasers are dangerous weapons and should only be used by those with proper training. The author's description of "The Taser" is a hyperbolic description used to illustrate a point and perhaps elicit a chuckle in its unreasonableness. For those of you would would agree to such a statement in seriousness, the author will state criminal and civil liability could potentially result from such conduct. Consulting with an experienced attorney may be beneficial should you have questions regarding this. Many people do not understand self-defense laws, and the author may one day attempt to explain them on this blog. In the meantime, in the words of a University of Florida scholar, "Don't Tase me, bro'!"

Hail Cesar!

I think my two year old is absolutely adorable. Each morning, we share breakfast and a cup of coffee together. He has his own special breakfast, but always stares longingly at mine. After breakfast, we high-five each other and I go about my day and he goes about his. At night, we usually curl up together on the couch and he eventually falls asleep with his head in my lap.

But, while he is adorable, he is also a handful and quite frankly just a plain old jerk sometimes. He makes other peoples' two year olds cry and run away. He is loud and unruly, and he makes other people scream with fright and run for the hills as if he were one of the Children of the Corn. So, to control his aberrant behavior my wife and I decided to enroll him in a basic manners class before he caused so much trouble he got us sued. Imagine our dismay when the owner of said class emailed me one day and said that our particular two year old was too much of a handful for the basic manners class. He wasn't welcome there and instead would have to go to a "special" class.

At this point, I think it's probably important to mention that my two year old isn't what you might think him to be. Did you know that he's actually a dog? A German Shepard to be exact. So, my wife, myself, and Brody went through four weeks of intensive Feisty Fido classes and now my two year old is (slightly) less feisty. My wife and I were also comforted to know that Brody truly is not the worst behaved dog in the City of Raleigh.

Many people, especially those with puppies like mine, often wonder if they will be on the hook for someone's medical bills, lost wages, and pain and suffering should their feisty Fido get a little too feisty with somebody's hand or leg or other appendage. The answer to those queries is very lawyerly: it depends. There are a wide variety of specific state and local laws that govern domestic animals such as dogs.

Generally, North Carolina as a whole follows the same rule of law for domestic animals that most other jurisdictions follow. That is, the owner of a domestic animal (dog) will be liable for injuries caused by that animal if the owner knew or should know of the animal's vicious propensities (i.e., it has bitten someone before and/or snarls at anybody who comes within a few feet of it). In addition, North Carolina provides by statute that the owner of a dog will be strictly liable (no fault needed) for injuries or property damage inflicted by a "dangerous dog." The term dangerous dog has a very specific meaning set out in the statute, which you can find here.

Most dogs bark and act "aggressive" because they are afraid and/or they're just overly excited. And certain breeds can certainly be more intimidating than others. For example, while I see a cute and cuddly puppy who wants to play, you may see a jumping, barking, and lunging German Shepard. The same type of dog that police use to catch and bite criminals. Owners of dogs can avoid potential legal issues by exercising reasonable care, common sense and courtesy, and taking the necessary steps to properly train their dog. This, we have discovered, takes quite a bit of patience and practice.

But, there are some dogs that are owned by people who are not as responsible as my wife and I. Their dogs do not resemble anything that Cesar Millan has trained. More likely, their dog resembles something Michael Vick has trained. This is very unfortunate for the animal and it's unfortunately a large problem in certain areas. If you have found yourself confronted and injured by a dog like this, then consider consulting with an experienced attorney to protect your legal rights.

Disclaimer: The author's views are his own. This blog post is not intended to convey specific legal advice upon anyone. The author's dog, Brody, has never attacked anyone. It is a track record the author is proud of. The author's dog loves to watch old Rin Tin Tin movies and loves police officers. Therefore, the author cannot guarantee that this trend will continue should you try to break into the author's humble abode. The author thinks Cesar Millan is a god-like person who deserves some type of Nobel award. Cesar Millan, the author believes, does not live in North Carolina, but the author used a company that is equally as good and recommends it to anybody. The author has attached pictures of his dog to show off said dog as he has no actual children. The author understands that displaying pictures to anybody who will look is the appropriate dorky parent thing to do.

Please, Watch Your Step

Spend a day fielding new callers in any personal injury law firm and you’ll quickly realize that there are many members of the general public that have yet to master the fine art of walking. They seem to have the most difficulty in grocery stores and retail giants like Wal-Mart.

Premise liability cases, the most common of which are the “slip and falls,” can present unique challenges and are often difficult to prosecute. Generally, owners of property are required to exercise reasonable care toward all lawful visitors. This includes, but is not necessarily limited to, keeping the property reasonably safe for the benefit of the visitor. To do this, the property owner should warn the visitor of non-obvious and dangerous conditions known to the landowner, and to make reasonable inspections to discover dangerous conditions and to thereafter make them safe. The duty to make safe dangerous conditions on the property is usually satisfied if a reasonable warning has been given.

This does not mean, however, that negligence on the part of the landowner is automatic if you happen to fall down on their property because of some defect or unsafe condition and no warning has been given. There is no duty to warn if the dangerous condition is so obvious that the visitor should reasonably have been aware of it (i.e., a gaping pothole in the parking lot, red Kool-Aid spilled all over the white aisle floor). All of us have a responsibility to see what ought to be seen. In essence, to watch where we're going. For example, if you’re walking around in the garden department of a store and you see a gigantic puddle of water in the floor, the store is more than likely not liable if you happen to voluntarily walk through the puddle and slip in the water.

Contributory negligence is almost always an issue in the standard slip and fall case. The nagging question in the back of jurors' minds is often how did the person not see that or where were they looking? A claimant seeking to recover in the standard premise liability case will often have to have a legitimate and logical reason for failing to see the condition that caused them to fall and be injured. If inattentiveness, a lack of due care, or running or fooling around are involved then the chances of recovery are likely very small.

What is reasonable in the premise liability case ultimately rests with the jury, as is the case with all negligence cases. For example, it is likely not going to be considered reasonable to expect the landowner to clean up all spills in the store immediately upon occurrence. It may, however, be reasonable to expect the landowner to have found and cleaned the spill after being on the floor for an extended period or time, or at the very least to place warning signs for the protection of visitors.

Slip and falls only comprise a portion of the wide variety of cases that fall into the Premise Liability category. Regardless of their type, premise liability cases can require quite a bit of investigation to successfully prosecute, and obtaining the evidence needed can sometimes be tricky. If you have had an incident on someone's property, then consider consulting with an experienced attorney to ensure that your rights are properly protected.