Our firm received a significant response to our original article about our two slip-trip-fall cases, where we recovered a million dollars or more on each case. Since then, we have had another case where we recovered over a million dollars for a premises liability case. The third case was a dog attack case, while not technically a fall case, it comes under the category of premises liability. All these cases have in common the client seeking to recover damages under a homeowner’s premises liability policy or business liability policy. Additionally, we recovered a $500,000.00 settlement on a fourth true premises case.
The Misconceptions Surrounding Slip-and-Fall Cases
While those recoveries say that plaintiffs can still win premises liability cases in Texas, many attorneys in Texas lack the experience to handle these cases or think that these cases are not worth pursuing. The stereotypical plaintiff who slips and falls on a banana peel or water in a grocery store gives these cases a bad name. These cases often invoke negative stereotypes of ambulance-chasing attorneys and shady plaintiffs, when the opposite is true. Homeowners and business owners have various duties that they owe to people who come onto their property. If a plaintiff’s attorney can establish that the legal duty owed to the client has been violated, premises liability cases can be strong cases.
Read, The Million-Dollar Slip-and-Fall Case (Part 1).
When Falls Lead to Serious, Life-Altering Injuries
As a rule, potential clients who call our office regarding premises liability cases are often injured far more severely than those involved in automobile collisions. People who fall tend to have either minor injuries that do not require a lawyer or severe injuries that require a lawyer and extensive medical care. Most often, people who fall and are just a little sore do not seek legal representation, but those potential clients who do call a lawyer usually have broken bones that require surgery and possibly long-term impairments. The most common serious injury that we see is a fractured leg, particularly tibia and fibula breaks (known as a tib-fib fracture). Clients often need surgery with the placement of screws and plates to repair such a break and extensive physical therapy. If the client has anything other than a sedentary job, they typically are unable to work for extended periods and have large lost wage claims. Some clients who are in professions that require extended periods on their feet or physical exertion have a lifelong job impairment that sometimes requires early retirement or changing careers. It is essential to get strong legal representation that understands how to document a lost wage and wage-earning capacity claim.
The bad news for premises liability clients is that Texas law is stacked against them. Many lawyers tell us that good premises liability cases are few and far between, if not dead, in Texas, because Texas law is written too much in favor of the property owner and against the injured party. That is largely the reason many lawyers routinely decline these cases. There is an “open and obvious” legal standard that makes it difficult for an injured party in Texas to win a lawsuit. Texas juries have often said that if the defect in the property’s condition is “open and obvious” the plaintiff has at least some, if not all, of the responsibility for their injury. Most juries accept the defense position that a plaintiff is at least in part responsible for their injury because they were not watching where they were walking. Establishing liability is also difficult if the owner does not know the property is dangerous. When someone slips on a slippery substance on a floor, the property owner can usually win the case by claiming that they did not know the substance was on the floor, and if they had known, they would have cleaned it up. Often, this is an honest and truthful defense.
Proving a Property Defect: What Strengthens a Case
The key to getting around the liability hurdle is to have a defect of the property that the property owner created or maintained over an extended period, and to have a client with a reasonable reason for not seeing the defect. Created condition defect examples include debris from construction, holes not filled in after work, exposed cable or wires from cable and utility companies, defective construction, and construction in violation of building codes. It is hard for a defendant to argue that they did not know of the defect in the property when they are the ones who built it that way or made it that way. Examples of maintained or failed to maintain defects include rusted grates and doors, broken stairs and railings, uncovered holes, improper shelving that causes fallen merchandise, and refrigeration units that leak. In maintained defect cases, discovery and investigation are essential to show how long the owner kept the property in disrepair. A jury is less sympathetic to a property owner who kept a condition for years when a minor repair could have prevented the injury. Often, finding a witness who will tell you that the property has been unsafe for years makes the difference between winning and losing. In contrast, when the case involves a defect not created by the property owner, often a foreign substance case, establishing liability is much harder, but not impossible. It is imperative to compile credible evidence that the owner knew of the substance but failed to clean it up reasonably. In those cases, finding the right witnesses is even more critical.
Overcoming the ‘Open and Obvious’ Defense
The key to getting around the open and obvious hurdle is to claim that the Plaintiff’s own behavior was reasonable and to proceed forward with the claim, ready to defend the injured party’s own action. Rule one for a defense attorney in these cases is to point the finger back at the plaintiff by blaming the plaintiff for not paying attention. While a perfect plaintiff can hop around any defective property obstacle, the plaintiff is not required to be perfect and watch the placement of every step they take. It is reasonable to assume that parking lots and common walk areas should not be blocked with trip hazards and holes. Because Texas is a proportionate responsibility state, the jury ultimately gets the opportunity to place a percentage of liability on the Plaintiff and a percentage on the Defendant. A good lawyer’s job is to gather evidence to show that the defendant’s actions were unreasonable and that the plaintiff did not cause their own injury.
Insurance Coverage: Don’t Miss Hidden Policy Limits
Insurance coverage in these cases is often layered, with smaller underlying policies ranging from $50,000 to $250,000, and then larger umbrella policies of one million dollars or more. Particularly, this is true when dealing with homeowners’ policies in the more affluent areas of North Texas, such as Denton, Collin, Dallas, and Tarrant counties. It is a common trick of the insurance industry to offer the policy limits of the underlying smaller policy and to hide the bigger policy from the plaintiff or the plaintiff’s attorney. It is imperative that when accepting an offer, the plaintiff’s attorney verify that the policy limits of all policies are being paid. Often, claims are settled with money from additional policies left on the table, and the unaware attorney or client does not even know.
Dog Bites and Dangerous Property Conditions
Dog bite and dog attack cases also fall under the category of premises liability in Texas and often trigger the same insurance policy coverage and liability limits. The “first bite” law in Texas is particularly unfavorable to plaintiffs. We have written in the past about dog bite cases in Texas, but it is important to talk about how dog bite claims often involve defective property claims. There is a misconception that it is impossible to win a dog bite case the first time the dog bites. Texas is known as a second bite state, which requires that a dog has dangerous propensities for an owner to be liable for the dog biting. Many incorrectly interpret that law to require the dog to have bitten another person for the owner to be liable. While a first bite case makes it difficult to establish liability if the dog had not bitten another person in the past, it is not impossible to win a dog bite case even if the dog has not bitten before. If the dog has done other things to show that it was dangerous, such as killing other animals or trying to attack others, this may be enough to establish that the dog had dangerous propensities.
Unrestrained Dogs and Unsafe Premises
Another way to establish liability in a dog bite or dog attack case, if possible, is to tie the claim back to a premises defect or the owner’s failure to restrain the dog. Owners must leash their dogs and not let them run at large; many of these duties are codified in municipal ordinances. Even if the dog does not bite, an owner may be liable for a loose dog that knocks down a bicyclist or causes injury when running at large. We are all familiar with the example of a dog that runs along a fence line, growling and wanting to get out and attack. An owner in these situations has a duty to make sure that the fence is adequate to restrain the dog. Even a friendly dog not intending to bite can cause an injury if not properly restrained, and Texas law may allow for a recovery in those situations.
We are always happy to discuss tips with other attorneys or potential clients on how to achieve the best possible result in a Texas premises liability claim.
Speak With a Premises Liability Lawyer at the Kuzmich Law Firm, P.C., Today
Seeking justice for a slip-and-fall claim can be overwhelming, but you do not have to face it alone. Board-certified attorney Steve Kuzmich has 28 years of legal expertise in advocating for victims and skillfully handling the complexities of personal injury claims to alleviate your burdens. He understands the financial pressures that arise from such incidents and tirelessly works to secure the compensation you deserve.
At Kuzmich Law Firm, P.C., our dedicated team not only guides you through the legal process but also ensures that every aspect of your case is meticulously addressed, from gathering evidence to negotiating settlements. By handling the legal load, we enable you to focus on healing and recovery. Schedule a complimentary consultation today by calling (972) 434-1555.