Proving your premises case before trial

Evaluating the client and the case from intake through discovery

2014 March

A potential client calls you and says she has suffered a serious injury while lawfully on someone else’s property. You are not sure what to make of the client or of the case, but she desperately needs your help. What do you need to know before signing up the case and how do you work up your case once you have been retained?

Investigation

Screen the client

The credibility, and in some cases, likability, of a plaintiff is critical to achieving a successful settlement or verdict. A case can be won or lost on how believable and personable your client is in front of a jury. Most jurors are skeptical of premises-liability cases, especially slip-and-fall cases. So, you want to assess the potential client’s credibility early and thoroughly. Keep in mind that your client’s own negligence may have contributed to the injury-producing event.

For slip/trip-and-fall cases, you will want to find out what the potential client was wearing (type of shoes, prescription glasses, etc.) and whether there were any other factors that could have caused the injury. I recommend meeting your client in person to do a reenactment of how the injury occurred. You would be surprised how much you can learn from having your client show you, rather than tell you, what happened. In some cases, you’ll find that the fall could not have possibly happened as the potential client described.

Preserve and demand evidence

Immediately after signing up the case, send a Preservation of Evidence letter to the property owner demanding that he or she preserve all evidence related to the injury-producing event. Also request any and all video surveillance, security tapes and incident reports. Many property owners will be more than willing to provide you with evidence that points to your client’s own negligence. In those cases, you can present the evidence to your client and discuss the discrepancies and/or reject the case. If the property owner refuses to respond to your requests, you can request the evidence in written discovery after filing of the lawsuit.

Survey the scene

Inspecting the scene where your client was injured is one of the most important things you can do in the early stages of the case. Visiting the premises, whether it be a store, a stretch of roadway, an amusement park, a commercial building or residential property, is an essential part of the case evaluation and can help you better understand how the incident occurred.

Depending on your budget and the nature of the case, you may want to consider retaining an expert to assist in the scene inspection. The expert not only preserves the condition of the scene through photo documentation, but will also do a thorough analysis of how the injury-producing event may have occurred by taking measurements, evaluating light sources, and noting building-code violations.

In most cases, you should have your client attend the scene inspection to further describe how the injury occurred. I have found that physically being at the scene with the client triggers a lot of memories for the client, making a useful way to gather additional evidence/facts that will help in proving your case. You may find that by visiting the scene, potential witnesses emerge and you are able to identify additional sources of information (such as video surveillance from the surrounding area).

Research codes and regulations

Identifying the codes and regulations that apply to your case can help you establish liability early on. If you are not familiar with the applicable building codes, standards and regulations, hiring an expert to assist you in determining whether there was a violation in your case may be worthwhile.

Know the law

If you want to prove your case before trial, you must know the law. I was taught early on in my career to enter every case with a clear understanding of what the plaintiff will need to prove at trial. I now make it a habit to review the jury instructions for each cause of action that applies to my case.

• CACI Jury Instructions

The CACI Jury Instructions on premises liability provide the perfect roadmap to a successful settlement or victory at trial. You can also use the instructions as a guide when drafting your discovery and your deposition outline.

The pertinent jury instruction for any premises liability case can be found in sections 1001 and 1003 of the CACI Jury Instructions. They are as follows:

Basic duty of care

A person who [owns/leases/occupies/ controls] property is negligent if he or she fails to use reasonable care to keep the property in reasonably safe condition. A person who [owns/lease/occupies/controls] property must use reasonable care to discover any unsafe conditions and to repair, replace, or give adequate warning of anything that could be reasonably expected to harm others.

In deciding whether [name of defendant] used reasonable care, you may consider, among other factors, the following:

(a) The location of the property;

(b) The likelihood that someone would come on to the property in the same manner as [name of plaintiff] did;

(c) the likelihood of harm;

(d) The probable seriousness of such harm;

(e) Whether [name of defendant] knew or should have known of the condition that created the risk of harm;

(f) The difficulty of protecting against the risk of such harm; [and]

(g) The extent of [name of defendant]’s control over the condition that created the risk of harm; [and]

(h) [Other relevant factor(s).]

Unsafe concealed conditions

[An owner/A lessee/An occupier/ One who controls the property] is responsible for an injury caused by a hidden condition if:

The condition created an unreasonable risk of harm; The [owner/lessee/occupier/one who controls the property] knew or, through the exercise of reasonable care, should have known about it; and The [owner/lessee/occupier/one who controls the property] failed to take reasonable precautions to protect against the risk of harm.

[An owner/A lessee/An occupier/One who controls the property] must make reasonable inspections of the property to discover such conditions.

• Civil Code (Common Carrier Strict Liability)

In cases where you are dealing with a common carrier such as planes, trains, elevators/escalators in commercial buildings and amusement park rides, strict liability applies and you simply need to show that these carriers of persons were unsafe and unfit for the purposes for which they were put.

Civil Code section 2100 reads:

A carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.” Similarly, Civil Code section 2101 reads as follows: “A carrier of person for reward is bound to provide vehicles safe and fit for the purposes to which they are put, and is not excused for default in this respect by any degree of care.

Written discovery

What you need to prove your case and how to get it

To prove your premises-liability case, you will need to request certain documents from the defendant. Premises’ cases center around the defendant’s knowledge of an unsafe condition/hazard and the failure to eliminate or provide adequate warning of that unsafe condition/hazard. The evidence you need that will be helpful in proving your case include: 1) any video or electronic surveillance of scene; 2) photographs and diagrams of the area; 3) safety manuals; 4) any contracts between all parties (and third-party entities such as management companies and cleaning companies) regarding maintenance of premises; 5) all maintenance logs/reports; 6) all inspection logs/ reports; and 7) all reports of prior incidents that were similar to your client’s case.

Establishing notice

Since you have the burden of proving not only the existence of a dangerous condition, but also that the owner/controller of the premises had notice (actual or constructive) of the dangerous condition prior to your client’s injury, you must be sure to request documents that establish notice.

Actual notice is established when there is evidence that the owner/controller of premises created the dangerous condition. (Hatfield v. Levy Bros. (1941) 18 Cal.2d 798, 806) You want to look for situations where an employee spills something on the floor and fails to clean it up within a reasonable amount of time or where a hazard is created when repairs are started, but not completed, and the public is exposed to that danger without being provided with adequate warning of the hazard.

Constructive can be established when the owner of the premises fails to carry out regular inspection where had the inspections taken place, the hazard or dangerous condition would have beendiscovered (and, presumably remedied). (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) You will want to request documents pertaining to the regular inspection and maintenance of the premises.

Depositions (person most knowledgeable)

When handling a premises-liability case, you will find that the most efficient way to get the information you need to prove notice is through the deposition of the Person Most Knowledgeable (PMK) regarding maintenance, inspection and repair of the premises. The primary goal in taking the PMK deposition should be to get the deponent to admit that despite a desire to exercise, at the minimum, reasonable care in keeping the property in safe condition, the premises were not safe. When drafting the notice of deposition for the PMK, it is recommended that you include in that request a request for production of documents. That will ensure that the deponent arrives at the deposition with at least the documents (safety manuals, inspection logs, etc.) that you will need and will afford you the opportunity to go over the documents with the deponent at the deposition.

Conclusion

Premises-liability cases can be complex and document intensive, but if they are handled properly from the outset, working them up can be fairly straight forward. If you conduct a thorough investigation, use the law as your guide and ask the right people the right questions, you will find yourself one step closer to achieving justice for your client.