Premises liability claims are among the most common and most expensive personal injury claims. Falls are a good example. These incidents are not only the leading cause of emergency room visits in Virginia, they also cost over $70 billion per year in medical bills alone. Other types of premises liability claims include dog bites, swimming pool drownings, and injuries related to negligent security.
Medical bills are just one portion of the compensation that a Richmond personal injury attorney can obtain in these cases. Compensation is also available for other economic losses such as lost wages, as well as noneconomic losses such as pain and suffering.
Since homeowners’ insurance usually has higher coverage limits than car insurance, the maximum compensation is available in premises liability claims. Although every matter is different, they usually involve the following three areas.
Setting the Duty of Care
Negligence is a failure to adhere to duty – in this case, the duty of care held by the property owner. In Virginia and most other states, this duty largely depends on the relationship between the victim and property owner as follows:
- Invitee: Most premises liability victims are invitees. The owner gives these individuals permission to be on the property. Furthermore, the owner benefits, either economically or non-economically, because of their presence. Largely because of this benefit, owners usually have a duty of reasonable care in these situations.
- Licensee: Some victims have direct or indirect permission to visit the property, but there is no benefit to the owner. Because When there is no benefit, the owner usually has only a duty to warn about latent (hidden) property defects which could cause injury.
- Trespasser: Typically, if there is no permission and no benefit, there is no duty of care. Although there are a few exceptions like the attractive nuisance rule, tales of injured burglars who successfully sue homeowners for damages are mostly urban legends.
If an owner has a duty of care, knows about a hazard like a wet spot on a floor or a vicious dog, and does not address the hazard, the owner and their insurance provider may be financially responsible for damages that occur.
Establishing Knowledge
This knowledge could be actual or constructive (should have known). In both situations, the burden of proof is a preponderance of the evidence, or more likely than not.
Direct evidence of actual knowledge often surfaces during the lawsuit’s discovery process. For example, an owner might admit during a deposition that they knew the dog was vicious or that the floor was unsafe.
More often than not, however, victim/plaintiffs must use circumstantial evidence to establish constructive knowledge. The time-notice rule normally applies. If the hazard had been a potential problem for some time, the owner should have known about it and should have addressed it. What constitutes a reasonable amount of time mostly depends on the facts.
Refuting Insurance Company Defenses
Since Virginia is a pure contributory negligence state, if the victim is even 1 percent responsible for the accident, the victim is ineligible for compensation. Falls usually involve some variation of the open and obvious defense. Essentially, the insurance company argues that the victim didn’t watch where they were going. But not all hazards are “open and obvious” to everyone. For example, many older victims have impaired vision. Avoiding hazards that are open and obvious to other people is a problem for them.
Get Legal Assistance for Your Personal Injury Case – Free Consultations
Most property owners have a legal duty to keep guests reasonably safe. For a free consultation with an experienced personal injury attorney in Richmond, contact Geoff McDonald & Associates, P.C. Attorneys can connect victims with doctors even if they have no insurance or money.
