Don’t fall flat when selecting premises-liability experts

A stairway-fall case spotlights the different types of experts

2015 April

Every poker player has undoubtedly heard stories from fellow players about bets and calls not working out. Then, said players ask your opinion on how you would have handled the game. But, giving your opinion would be nearly impossible because you are in the dark as to the variables of the particular game at issue. Unlike that scenario, this article will shed some light on selecting experts in premises-liability cases. Much like poker, litigation is very situational; what to do and when to do it varies on a case-by-case basis. This article, and the dangerous-stairway example threaded throughout, should give you a roadmap of how to select experts for your premises-liability case.

Safety expert-engineer

In handling a premises-liability case, you are almost always going to use a safety expert. That person will most likely be a safety engineer. As part of their investigation, safety engineers inspect sites, take measurements, and research applicable building and safety codes. Then, they give opinions on whether the condition of the premises was safe when your client encountered it.

It is important to engage a safety engineer very early in your case. Let’s look at a case involving an allegedly dangerous stairway. You will want to have a safety engineer inspect the stairway, take its measurements and photograph it. Doing this as soon after the accident as possible is important for several reasons. First and foremost, property owners will often take action to make the dangerous condition (which likely injured your client) safe. Property owners are afforded great protection under the law from repercussions for making their property safe for intended users. Hence, there is almost an incentive for them to remediate immediately, which is why it is so important to document the condition before they have that opportunity. Additionally, property owners tend to limit or deny access to areas were people have been injured. Without access to the site of the injury, it is impossible to document its condition at the time of the injury.

Generally, when you are engaging a safety expert at the beginning of a case, it is before the case is filed and before you can demand a formal site inspection. In most of the cases I handle, my expert simply goes to the location and conducts the inspection without formal notice to the property owner. Let’s assume the dangerous stairway we are using as our example was meant for people accessing units in an apartment building. In that case, it would not be hard for your expert to just go to the building and conduct their inspection. There are, however, times when building managers or owners realize what is going on and kick your expert off the property. But this is rare and because these inspections can take as little as 20 minutes, they often go unnoticed. Thus, the preliminary investigation and early gathering of evidence are usually easy to do. In sum, the early engagement of a safety expert could be crucial to the preservation of your evidence, and eventually to the theory of your case.

Biomechanical experts – scientific evaluation of injuries

Generally speaking, biomechanics is the science of how the human body responds to applied external and internal forces. Injuries are often the result of specific applied loads. A capable biomechanical engineer will examine specific injuries and then use reverse engineering to determine if the pathologic loading caused the injuries claimed. They do this by applying their knowledge of injury mechanisms. These experts perform comprehensive analyses of traumatic injuries related to slips, trips and falls; vehicular, motorcycle, boating collisions; sports and recreational activities; fights or assaults; occupational or workplace claims; and failed products claims, such as those related to medical implants, assistive devices, orthotics, or consumer products. Below are some of the questions I often pose to biomechnical experts on premises- liability cases:

• Are the claimed injuries consistent with the evidence?• Could these injuries have occurred as claimed?• Could these injuries have been prevented?• Would proper safety practices by the property owner have prevented these injuries?

Biomechanical experts and safety experts usually work hand-in-hand. Let’s look back at our dangerous stairway. Our safety expert inspected the stairway and took its measurements. Now, the biomechanical expert will look at those measurements and use them to analyze the incident.

A common problem with stairways is the lack of uniformity in the rise and run of its steps. Two components of the stairs are the rise and the run. The rise is the distance from the top of one step to the top of the step above it. The run is the distance from the front of the step to the front of the overhang of the step above. Much like most things, stair construction includes basic rules. These are designed to produce a safe method of transitioning from one level of a building to another. There are rules governing the safe parameters of rises and runs which have been part of the Uniform Building Code in California since it was first adopted in 1913. The code requires the steps of a set of stairs to be uniform in size and configuration. This is important for the safety of people using the stairs. Because people moving on stairs develop a cadence, or feel, for the stairs, steps of a different size can disrupt the cadence and can cause falls or stumbles. Your biomechanical engineer can give an opinion on how the accident happened by testifying as to how your client’s body moved in response to uneven stairs.

As discussed above, biomechanical experts are also engaged to give opinions about whether the claimed injuries are consistent with the evidence. And, as anyone who has litigated any type of injury claim against insurance companies knows, they always try to deny the nature and extent of your client’s injuries. Biomechanical experts analyze the evidence and the injuries suffered to formulate opinions on whether those injuries are consistent with your client’s narrative. In a typical stairway accident, be it a misstep or trip, a violent fall will ensue, which will usually cause significant injuries. The defense’s biomechanical expert will pick apart your client’s testimony and will try to minimize the injuries that can be attributed to the accident.

For example, someone who trips while descending a stairway might land on the right foot and right shoulder at the bottom of the stairs. Based on your client’s testimony, your biomechanical expert will analyze the evidence and formulate opinions about whether the injuries to the right side of the body are consistent with that fall. It goes without saying that the defense’s biomechanical expert will usually have opinions that, given your client’s narrative, there is no way they could have sustained injury to their right shoulder or right foot; hence the importance of having your own expert to preempt and rebut that testimony.

It is important to note that a biomechanical expert, although similar to an accident reconstruction expert, does not give the same type of opinion. Let’s look at how an accident reconstruction expert can help us with this stairway fall.

Accident reconstruction experts

An “accident” is defined as “an unexpected and undesirable event.” Accident reconstruction is a branch of causation forensics, which involves determining how and why an accident happened. It is accomplished first by correctly interpreting the clues left by the remaining physical evidence of the accident, then by reconstructing and studying the events preceding, during, and following the accident. A peculiarity of this profession is that reconstructions are methodically worked backwards. They go from the end results back to the beginning sequence of events. Almost all types of accidents are investigated through this reconstruction methodology, e.g., trips and falls, slips and falls, plane crashes, crane failures, bridge collapses and vehicular collisions.

In our stairway fall, the accident reconstructionist is going to be very interested in the measurements, data and conclusions of both the safety expert and the biomechanical expert. An accident reconstructionist will use that information, along with his or her own research, and will come up with a sequence of events that can clearly and concisely explain what happened to your client.

Remember, ultimately, these witnesses will have to testify in front of a jury. So, even though much of their testimony is highly technical, you have to work with these experts to help them present the information in a way that can be understood by a jury. Actually, preparing your expert witnesses is one of the most important aspects of being ready for trial.

Forensic architects

What if the safety expert finds that the stairway was built in accordance with the applicable codes? Does compliance with the codes mean that the stairway is not dangerous? You can bet that the defense will argue that code compliance equals safety. How do you handle that situation? One way is to hire a forensic architect. A forensic architect analyzes whether a structure, as built, even if it is built according to the applicable codes, does not operate or function as intended.

A forensic architect can tell you any number of things, including whether a stairway is too steep or too narrow, or has too many risers, or if it lacks the correct visual cues for a person using it to be able to determine a change in elevation. A forensic architect can’t be designated to give safety opinions. Forensic architects are experts we call in the capacity of a CSI (Crime Scene Investigator); they can give opinions after looking at the clues in the building construction. They try to discover the root causes of problems and ultimately the actual reasons why certain things happen in constructed facilities. However, as we’ve learned in this article all of your experts are going to work together to help you win your case.

At the end of the day, as I said in the beginning of this article, every case is different. While this is certainly not intended to be an exhaustive list, it is a pretty good sampling of the experts that might be useful to you when trying to prove liability in a dangerous stairway situation.