Steps to Preserve Your Claim in a Premises Liability Case

Steps to Preserve Your Claim in a Premises Liability Case

Anderson O’Brien handles many claims involving individuals who injure themselves after falling or tripping due to ice or some other unsafe condition or obstacle. These types of cases are called premises liability cases. They occur frequently, especially during Wisconsin’s difficult winters involving ice and snow. March is a particularly hazardous month with all of the freezing and thawing that takes place, resulting in the accumulation of ice. Many of these incidents result in very serious injuries requiring surgery, necessitating the insertion of plates and screws into someone’s ankle, leg or hip. These cases can be difficult to prove, as it is necessary to establish that the property owner was negligent and/or, in some cases, that they violated Wisconsin’s Safe Place Statute.

However, while serious injuries may result from a slip and fall, it can be difficult to preserve the very evidence you need to prove your case. Several steps must be taken to effectively preserve your evidence and to pursue your claims. The following consists of some of the steps that are important for you to take if you intend to pursue a premises liability claim.

1. Provide Notice of the Incident Immediately.
Proper documentation in premises liability cases is crucial. Providing notice immediately to the owner or manager of the property is something that absolutely must be done in order to pursue your claim. The purpose of immediate notice is that it puts the owner or manager of the property on notice so that it provides credibility to your claim that the trip and fall actually occurred at the time and location you said it did. The restaurant, store, gas station, or manager of the facility where you fell also should generate a written incident report which can later be used to prove your claim. Additionally, providing immediate notice to the owner or manager on site will cause that person to investigate and to observe for themselves if there are, in fact, icy conditions or other dangerous conditions which exist, and they can be a witness that you can use to establish your claim. It also provides the manager with notice that they should take measures to render the premises safer, such as placing salt on the ice upon which you fell, and that can also be used as evidence against the property owner.

2. Take as Many Photographs as You Can.
Documenting the scene of the incident through photographs is invaluable and can literally make or break your case. The condition of what you tripped or fell on can change almost instantly. (For example, water or liquids can be cleaned up by the property owner; ice and snow conditions on a sidewalk or inside a building can melt. Other unsafe conditions can be fixed and repaired within a short period after the incident.) Therefore, if you do not take photographs to establish the condition at the time you fell, it may be very difficult to give an accurate verbal description to the insurance company or to a jury of what it is you fell on, what time you fell, and where you fell. Certainly, you may not be able to think about taking photographs at the time that you sustained a serious injury. However, you need to do whatever you can to take pictures. If you need to, ask someone else to take pictures with your phone immediately or have a friend or relative go back to the location as soon as they can after you fall. Photographs are the single most critical piece of evidence in many slip and fall claims.

3. If Possible, Obtain Information About Other Witnesses.
In many slip and fall cases, if you do not have direct video surveillance saved by the business where the incident took place, the claim may essentially boil down to “he said, she said” evidence. The insurance company may argue that you did not even fall on the date or time that you said you did. If you obtain the contact information of all witnesses who observed the incident or saw you lying on the ground after you were injured, this will give greater credibility to your claim. You will also then have contact information for these witnesses who can testify as to the conditions where you fell at that exact moment.

4. Seek Medical Treatment if Necessary.
If you are injured in a slip and fall incident and you need medical care, you should do so immediately and go to the emergency room rather than waiting for an appointment with your doctor several days later. The significance of this is twofold. First, the doctors can examine you and take x-rays to get you the proper care you need immediately to get you on the road to recovery. You should follow all of your doctor’s advice and show up to all of your appointments. Secondly, the fact that you slipped and fell will be reported in your medical records and if you go to the emergency room, this will help establish the date, time, and location of when this incident actually occurred. Be specific with your doctors about the details surrounding this injury. When you pursue a claim against the insurance company and have to testify, sometimes several years later after the fall, the documentation in your medical records will prove invaluable in establishing your claims.

5. Contact an Attorney.
It is important to contact an attorney right away if you intend to pursue a potential premises liability claim. There are important time limits and notice provisions under the law that must be satisfied in order to pursue a claim against property owners or insurance companies. The legal requirements of notice will differ based upon where you fell (i.e., for a government entity, you must give notice of the injury within 120 days). Evidence must be preserved, investigations and contact with witnesses must be made. Anderson O’Brien has the experience and expertise to handle these types of cases. We take the burden off of you to develop your case from the very beginning. We offer free initial consultations to evaluate potential premises liability claims.

Following the above steps in a premises liability claim, or any personal injury claim, will greatly assist your attorney in representing you to obtain the best results possible.

 

Liability Concerns for Dog Owners

Liability Concerns for Dog Owners

Dog owners love their dogs. Statistics show that there are approximately 89 million dogs in the United States which are kept by 60 million households. However, while our dogs give us great companionship, they can also create a liability concern, costing the owners substantial amounts of money if the dogs cause property damage or personal injuries. The statistics show that there are approximately 4.5 million dog bites per year in the United States and approximately 750,000 dog bite victims who require medical care each year. In 2015, more than 28,000 reconstructive surgery procedures were performed because of dog bites.

Under Wisconsin Statutes, Wis. Stat. § 174.02, an owner of a dog is strictly liable for the full amount of damages caused by property damage or bodily injuries caused by a dog to another person, animal, or property. (The strict liability is subject to the defense of contributory negligence. For example, if someone provoked the dog which resulted in a dog bite, that may reduce the dog owner’s responsibility for damages to that person.)

If the owner of the dog is aware of a previous time when the dog, without provocation, caused serious injury to someone, then the owner of the dog will be liable for twice the full amount of damages caused by the dog biting someone again with sufficient force to break the skin and cause permanent injuries. The amount of damages may include pain and suffering, past and future medical bills, wage loss, and permanent disfigurement. In addition to monetary damages, a court may order that the dog be euthanized under both of the following conditions:
1. The dog caused serious injury to a person or domestic animal on two separate occasions off of the owner’s property, without reasonable cause; and
2. The owner of the dog was notified or knew prior to the second injury that the dog caused the first injury.
The financial impact of dog bites is substantial. Dog attack victims in the United States suffer over $1 billion in losses every year. Dog bites and other dog-related injuries cost homeowners liability insurance companies more than $686 million in 2017.

Given that a dog owner is strictly liable for damages, what can a homeowner do to protect themselves? First of all, using good old common sense may go a long way to preventing these occurrences. Keeping one’s dog on a leash and preventing it from roaming onto other people’s property may help prevent unwanted injuries. Additionally, not allowing strangers or small children to approach one’s dog will also prevent situations where the dog may feel threatened. Also, keeping the dog in the house when mail carriers or delivery people are approaching the home would be a prudent course of action. The statistics show that 5,900 U.S. postal service letter carriers were bitten by dogs in 2012.

No matter what precautions one takes, it cannot always prevent dog bites from occurring. To protect against this personal financial risk that you have for being a dog owner, the first place one should look to is one’s homeowner’s or renter’s insurance policy. It would be wise to evaluate your insurance coverage at the present time if you own a dog. Depending on which insurance company you have, there are a wide variety of approaches taken by the insurance companies as to whether they cover dog bites or whether they exclude damages resulting from dog bites. Some companies will cover the damages, provided that you pay the premium for an endorsement providing this type of coverage. Some companies will only pay a small amount for damages and some may pay less depending upon the type of breed of dog that you have. Some companies will exclude coverage completely. Interestingly enough, some companies will provide coverage for the first bite, but then have language in their policy excluding coverage for any subsequent dog bites after the owner has knowledge of a first bite.

Therefore, it is recommended that if you want to be certain as to whether and to what extent you have insurance coverages for damages resulting from a dog bite, that you get in touch with your insurance agent. Another way for one to minimize the financial risk associated with dog bites would be to purchase an umbrella insurance policy which provides additional protection for liability. Our law firm has discussed the importance of an umbrella policy at many of our seminars and in other articles and website videos. An umbrella policy, which is relatively inexpensive, does not simply apply to automobile liability, underinsured motorist coverage, or uninsured motorist coverage. A personal umbrella policy can also provide for additional liability coverage under your homeowner’s policy for occasions such as this if you are found liable for damages resulting from a dog bite. Again, you are encouraged to check with your insurance agent to see what coverages are offered and what limitations or exclusions can be found in your policy relating to dog bites.

It is also important to note that if you do, in fact, have coverage for dog bites under your homeowner’s policy, then the insurance company is obligated to provide a defense to you in the event you are sued in a lawsuit resulting from the dog bite. The insurance company would then have a duty to defend you and pay for attorneys’ fees to defend you. That is a very valuable benefit of having the insurance coverage – not only may it provide coverage so that you do not have to dip into your personal resources to pay for any damages, but the cost of a defense in a lawsuit can be very substantial and it is an excellent benefit to have in the event this unfortunate situation arises. If you have questions about liability for dog bites or are a victim of a dog bite, you should contact an attorney right away. There are time limitations in which you can bring claims for injuries if you do sustain a serious dog bite and, therefore, it is important to preserve evidence and discuss the legal ramifications early in the process.

 

Wisconsin’s Recreational Immunity Statute

Does Wisconsin’s Recreational Immunity Statute protect you from liability?

As the snow finally melts and spring arrives, our focus will be on enjoying the great outdoors in Central Wisconsin. Recreational activities that we enjoy may include hiking, biking, fishing, hunting, horseback riding, camping, picnicking, birdwatching and riding ATVs. While we enjoy these recreational activities, are property owners liable for injuries sustained by people engaged in recreational activities on the owner’s property?

Wisconsin Statute § 895.52 is a recreational immunity statute which generally limits the liability of property owners when a person is injured while engaging in a recreational activity on their property. The property owners generally have no duty to: (1) keep the property safe for recreational activities; (2) inspect the property; or (3) give warning of an unsafe condition, use or activity on the property.

The statute defines “owner” of property in very broad terms and includes private property owners, governmental bodies, and nonprofit organizations that own, lease or occupy property. The statute protects property owners from liability as a result of injuries sustained by people engaging in approximately two dozen recreational activities, including those referenced above and others, such as rock climbing, hang gliding, cutting or removing wood, exploring caves, outdoor sports, water sports, and many winter sports activities.

As with many laws, there are exceptions to this statute. The owners of private property lose the immunity afforded to them if the private property owner collects a total of at least $2,000 per year in payment or fees for the use of the owner’s property in the year in which the death or injury occurs. For example, if you lease land for hunting and receive as rent a total of at least $2,000 in a particular year, you will not be afforded immunity from injuries sustained on your property. Additionally, property owners who use their property for organized sports also lose the protection under the statute.

In addition, a private property owner loses immunity if the death or injury occurs on platted land, residential property, or property within 300 feet of a building or structure on land that is classified as commercial or manufacturing, and if the injured person was a “social guest” who was expressly and individually invited by the property owner for the specific occasion when the injury occurred.

Wisconsin courts have interpreted various aspects of the recreational immunity statute on many occasions and have held that even spectators who attend a recreational activity are engaging in a recreational activity under the statute, such that the property owner is immune from liability if a spectator is injured. The Wisconsin Court of Appeals has recently extended the recreational immunity statute to deny recovery to those injured who may be on the property merely “supervising” those who are engaged in a recreational activity.

The recreational immunity statute provides very broad protection to property owners. However, the statutory exceptions and the case law from Wisconsin courts can make it a very complex and fact-intensive inquiry. If in a certain situation the property owner does not receive the protection of the immunity statute, it must be kept in mind that the property owner is not automatically liable for the injuries sustained by anyone on the premises. The injured party must establish that the property owner breached a legal duty to the injured party. The duty owed by the property owner requires a factual and legal analysis.

Property owners may attempt to limit their exposure to liability by having users of their property sign releases and waivers of liability. However, Wisconsin courts are reluctant to enforce these unless they satisfy very strict requirements. A property owner may also attempt to limit personal financial liability for injuries by purchasing adequate liability insurance, including an umbrella insurance policy.

Because of the complexities involved, it is recommended that you contact a lawyer to discuss your specific circumstances to assess your risk for liability for any injuries that may occur on your property.

Insurance Plays Critical Role

The benefits of having good insurance and high policy limits cannot be overemphasized. When a new client comes into our office to discuss a potential claim, whether it be a personal injury claim or a dispute involving another party, one of the first issues that we discuss is what type of insurance may be available to cover the loss. In some cases, our clients are the ones who have been injured; in other cases, our clients are the ones who are accused of causing damages. In either case, having adequate insurance is essential to either compensate our clients for their loss, or to protect their assets if they are sued.

The primary cases where we see insurance limits having a significant impact involve automobile accidents. While Wisconsin law requires all licensed drivers to have an automobile liability insurance policy in place, those policies must have a minimum limit of only $25,000 for injury or death. If you are struck by an at-fault driver in an accident who has only $25,000 in liability insurance to cover your losses, there is a good chance that your damages will exceed those policy limits. With the cost of medical care, even for injuries that are not life threatening, the medical bills alone can easily exceed the $25,000 limit. Imagine having substantial injuries with several years of treatment, surgeries and medical bills exceeding several hundred thousand dollars, along with lost wages, a permanent disability, and future medical expenses.

To protect yourself from the unfortunate possibility of being struck by a negligent driver with no insurance or low insurance limits, you can purchase high limits of Uninsured Motorist Coverage (UM) and Underinsured Motorist Coverage (UIM). Even though Wisconsin requires all drivers to have auto insurance, many people ignore this and drive with no insurance. You can purchase high limits of UM insurance through your own insurance company, which will help compensate you, your family and other occupants of your vehicle when you are injured by an uninsured motorist or a hit-and-run driver. Purchasing high limits of UM insurance is fairly inexpensive in light of the potential losses you could suffer in an accident.

Additionally, you may also purchase from your insurance company high limits of Underinsured Motorist Coverage (UIM) which provides bodily injury protection to you and the persons in your vehicle if the at-fault driver’s insurance limits are lower than your UIM limits and the at-fault driver’s insurance is not adequate to cover your losses. Again, purchasing high limits of UIM is also fairly inexpensive in light of the substantial losses you could suffer in an automobile accident.

A type of insurance which will assist in protecting your assets if you are at fault in causing an accident is an “umbrella” or “excess” insurance policy. This is a larger policy which provides additional coverage that would be used once your underlying liability limits are exhausted. For example, if you caused a serious automobile accident and the other driver sustains $200,000 in medical bills alone, his or her potential claim against you will be much higher when considering the value of wage loss and pain and suffering damages. If you had only a $100,000 liability insurance limit, which was inadequate to compensate the injured party, the injured party or parties may obtain a judgment against you individually and pursue collection of all of your assets up to the amount of their damages.

While you may have some protection by going through bankruptcy, this is not always the best alternative. To be proactive in protecting your assets in such a situation, you would purchase the excess or umbrella insurance policy which typically provides additional limits of $1 million or $2 million, depending upon what policy you purchase. This extra protection is essential if you cause a serious injury. Additionally, some umbrella or excess insurance policies will also provide you with the additional $1 million or $2 million in benefits for your injuries and may be added to your UM and UIM coverage limits. Check with your insurance agent to make sure that your umbrella policy applies to UM and UIM coverage because many do not. If it does apply, and if the other driver who causes the accident does not have adequate insurance, then you will have a substantial amount of additional insurance available to compensate you for your medical expenses, wage loss, and pain and suffering. Again, the cost of an excess or umbrella policy is relatively inexpensive in light of the protection it can afford you.

It is prudent to check with your insurance agent on the cost for the highest limits you can purchase for all of the above coverages. It is strongly recommended that you purchase as much insurance as you can reasonably afford in order to protect yourself from the unfortunate circumstances described above. This will assist in protecting your assets and to help you recover compensation for substantial medical bills, pain and suffering, loss of wages and possible permanent disability. While no one plans on getting into an accident and being seriously hurt, you can be proactive and protect yourself against other drivers who have no insurance or have minimum liability limits.

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