Premises Liability Claims: Plaintiff and Defense Strategies in Slip and Fall, Inadequate Security Cases

Presenting a live 90-minute webinar with interactive Q&A Premises Liability Claims: Plaintiff and Defense Strategies in Slip and Fall, Inadequate Security Cases Assessing Claims, Proving or Defending Liability, Overcoming Evidentiary Challenges, and Maximizing or Mitigating Damages

THURSDAY, AUGUST 13, 2015 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

Today’s faculty features:

Richard D. Abrams, Partner, Mintzer Sarowitz Zeris Ledva & Meyers, Wilmington, Del.

David H. Fleisher, P.E., Fleisher Forensics, Ambler, Pa.

E. Michael Moran, Partner, Law & Moran, Attorneys at Law, Atlanta

The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10. Tips for Optimal Quality FOR LIVE EVENT ONLY

Sound Quality If you are listening via your computer speakers, please note that the quality of your sound will vary depending on the speed and quality of your internet connection.

If the sound quality is not satisfactory, you may listen via the phone: dial 1-866-869-6667 and enter your PIN when prompted. Otherwise, please send us a chat or e-mail [email protected] immediately so we can address the problem.

If you dialed in and have any difficulties during the call, press *0 for assistance.

Viewing Quality To maximize your screen, press the F11 key on your keyboard. To exit full screen, press the F11 key again.

Continuing Education Credits FOR LIVE EVENT ONLY

In order for us to process your continuing education credit, you must confirm your participation in this webinar by completing and submitting the Attendance Affirmation/Evaluation after the webinar.

A link to the Attendance Affirmation/Evaluation will be in the thank you email that you will receive immediately following the program.

For additional information about CLE credit processing call us at 1-800-926-7926 ext. 35. Program Materials FOR LIVE EVENT ONLY

If you have not printed the conference materials for this program, please complete the following steps: • Click on the ^ symbol next to “Conference Materials” in the middle of the left- hand column on your screen. • Click on the tab labeled “Handouts” that appears, and there you will see a PDF of the slides for today's program. • Double click on the PDF and a separate page will open. • Print the slides by clicking on the printer icon.

Strafford Continuing Education Webinars

Premises Liability Claims: Plaintiff and Defense Strategies in Slip and Fall, Inadequate Security Cases

Assessing Claims, Proving or Defending Liability, Overcoming Evidentiary Challenges, and Maximizing or Mitigating Damages

Thursday, August 13, 2015 1:00 - 2:30 p.m.

Premises Liability Claims: Plaintiff and Defense Strategies in Slip and Fall, Inadequate Security Cases

Presenter – E. Michael Moran, Esq.

7 DEFENDING PREMISES LIABILITY © CLAIMS

Presented by: Richard D. Abrams, Esq. AV® - Preeminent Rated.

8 9

OVERVIEW 95% of all claims for injuries on commercial property are the result of hazards located on the floor of the premises.

10 Unintentional Injury Deaths – 118,0001

34.3 million people – about 1 out of 9 – sought medical attention for an injury2

Transport (vehicle accidents)3 Falls Firearms Drownings Suffocation Food & Breathing Obstructions Fires and Burns ©2013 Fleisher Forensics 1: NSC 2008, 2: NSC 2010 Summary of Injury Facts, 3: National Vital Statistics Reports 3/31/10 11

DUTY OF OWNERS & OCCUPIERS OVERVIEW

 Generally speaking, Owners and Occupiers of land have a duty to discover and correct hazards of which they are aware, or would be expected to discover through reasonable inspections.  If known, the hazard must be reasonably managed by adequately removing the hazard

or providing adequate warnings.  Once discovered, a reasonable amount of time is permitted to correct the hazard 12 OVERVIEW DUTY OF INVITEES

 Invitees have an affirmative obligation to avoid hazards which are open and obvious, where nothing is blocking the hazard from view, provided the Owner – Occupier has not, for their own benefit, created a distraction intended or likely to capture the attention of the invitee while

walking in the vicinity of the hazard.

13 Related Factors – Slips, Trips & Falls

15 Assessing Cases – Plaintiff’s Perspective

 Significant Injury?  Who Is The Plaintiff?  The Tougher the Case, the More Important the Plaintiff  Critical Part of Analysis in Negligent Security Case  Code Violation?  Defendant’s Knowledge of the Hazardous Condition?

16 A. ASSESSING LIABILITY DEFENDANT’S PERSPECTIVE ◦ Incident Report ◦ Store Surveillance ◦ Photographs ◦ Electronic or Paper Sweep Logs / Maintenance Reports ◦ ID of Employee and Non-Employee Witnesses ◦ Statements – Invitee, Employees, and Witness ◦ Anything in Client’s Possession Not Provided by Insurance Company or TPA ◦ Store Policies and Procedures – Both Written & Verbal re:  Timing of Regular Inspections  Training Staff Responsible For Floor Maintenance  Evidence Retention (Spoliation Issues) ◦ History of Hazard  First Occurrence  Similar Occurrences  Ongoing Problem  Prior Knowledge  Efforts to Correct, Make Safe, or Warn  Prior or Subsequent Claims or Injuries 17 B. REVIEWING INSURANCE COVERAGE

 Most Institutional Defendants Carry sufficient insurance, and usually have a self- insured retention (“SIR”), which works like a deductible. This can vary from as little as $25,000 to $5,000,000. Many Institutional Defendants with SIRs of $100,000 or more have their own program for administering claims such as captive 3rd party administrators.

18 WHERE THERE ARE MULTIPLE DEFENDANTS, THE BIG

QUESTION IS WHOSE CGL COVERAGE IS TRIGGERED

19 CAN YOU TENDER TO CO-DEFENDANT’S CARRIER

 To answer this question, the primary consideration is which defendant had control of the area where the injury occurred. To determine that, you will need a copy of the Lease in effect on the date of the injury.

 The most important provisions in the Lease are: ◦ Definition of “Common Area” ◦ Section describing Tenant’s responsibilities for maintaining the Common Area, if any ◦ Section describing Landlord’s or Property Mgr.’s responsibilities for maintaining the Common Area ◦ Amount of Insurance Tenant must carry at all times ◦ Whether Landlord (or others) must be named in the Declarations as Additional Insureds

WHO IS THE TARGET DEFENDANT

21 TARGETS

 Property Owner  Property Manager  Tenant  Vendor  Parties In Joint Control

Property Owner

 Typically responsible for all injuries occurring on the Common Areas ◦ Slip & Falls on ice ◦ Trips on curbing ◦ Debris / Holes / Cracks ◦ Uneven Walking Surfaces ◦ Utility Access Covers ◦ ADA Access Issues ◦ Lack of Sufficient Traffic Controls in Parking Lot ◦ Curb and Parking Lot Paint Issues – Conspicuity ◦ Criminal Activity

23 ASTM F1637 – Standard Practice for Safe Walking Surfaces ANSI A117.1 & ADAAG – Accessibility

Changes in Elevations – Even to the extent possible

Check local code and ordinances. Locality may adopt for existing residential and/or non-residential structures and premises. Less specificity than Building Code. No provision for “Grandfathering” Building Code requirements.

Example BOCA and ICC Building Codes

1975-1987 :Violation 1990-1993 :Compliant 1996-1999 :Violation 2000-2009 :Compliant

Property Manager

 Responsibilities are typically the same as Property Owner, with a few caveats

◦ Likely no Contract Between Tenant and Property Manager ◦ May Not be Additional Insured or Have Indemnity Obligations

27 Tenant  Responsible for injuries . ◦ Occurring within the demised premises ◦ Occurring in areas outside of the demised premises which Tenant has maintained, or over which Tenant exercised some objective form of control ◦ Occurring in areas beyond the demised premises by virtue of provisions in the Lease creating Tenant obligations typically handled by Landlord (i.e. trash removal, supplemental snow removal, maintenance of landscaping, etc.)

28 Vendor  Injuries caused by Vendors can come in many forms

◦ Falls caused by incorrect cleaning procedures (Overnight Crews) ◦ Improperly stocked shelves (Product stacked too high or not balanced) ◦ Improper maintenance of mechanical systems ◦ Falls caused by hazards created by Vendor in course of performing job ◦ Injuries caused by Vendor negligence (Negligent conduct) ◦ Slip & Falls caused by improper or delayed plowing of Common Areas

29 Vendor Considerations

 When Co-Def. is a Vendor to your Client ◦ Privity of Contract and Remedies ◦ Indemnity obligation ◦ Named Additional Insured

 When Co-Def. is a Vendor to another Co-Def. ◦ No Contractual Remedies (unless 3rd party beneficiary – hard to prove) ◦ Unlikely your Client is an Additional Insured ◦ Where Client is the Tenant and injury occurred on Common Area, Client’s insurance company will likely be required to defend Client, and possibly the Landlord, based upon language in the Lease

Parties In Joint Control

 Tricky situation because terms in Lease may be at odds with common law. ◦ Fall occurs on sidewalk outside demised premises ◦ Landlord responsible via Lease for Common Area Maintenance and Snow ◦ Tenant regularly puts salt on sidewalk and complains to the Landlord that Landlord’s snow removal company does a bad job on the sidewalks ◦ Tenant’s Invitee slips on icy spot on sidewalk Tenant failed to salt ◦ Lease says Tenant not responsible ◦ Common Law says Tenant is responsible as consequence of exercising control

 Who’s insurance is answerable for defense and indemnity  What is your role as defense counsel

31 Proving Liability – Plaintiff’s Perspective

 What Is the Hazardous Condition? ◦ Prior Crime? ◦ Dangerous Person on Property? ◦ No Background Check? ◦ Poor Lighting? ◦ Code Violation?

 Defendant’s Knowledge of the Hazardous Condition ◦ Notice of Prior Crime? ◦ Failure to Comply With Code? ◦ Failure to Follow Internal Policies?

32 II. Defending Against Liability

33 A. Theories of Premises Liability

 Negligence ◦ Conduct of Employees on Property ◦ False Imprisonment/Bad Stop by Security  Biggest problem is failing to attend the criminal trial  Attractive Nuisance  Dog Bite Cases  Strict Liability

34 Negligence

.  Hazards on Property vs.  Conduct of Client and Employees .  Waiter spills bowl of hot soup on hotel guest.  Waiter was a hazard on property, which defendant should have been expected to discover and correct (incorrect)  Plaintiff attorneys frequently make this mistake  This is not premises liability  This is straight negligence

35 B. Challenging Causation  Affirmative Defenses (Commercial) ◦ Notice ◦ Open and Obvious d  Premises Guest Statute (Residential)  No person who enters onto private residential or farm premises owned or occupied by another person, either as a guest without payment or as a trespasser, shall have a cause of action against the owner or occupier of such premises for any injuries or damages sustained by such person while on the premises unless such accident was intentional on the part of the owner or occupier or was caused by the wilful or wanton disregard of the rights of others.  Delaware Code - Section 1501: Liability of Owners or Occupiers of Land for Injury to Guests or Trespassers ◦ Exceptions  Consideration  Apartments

36 Notice Defendant Knew  “ . . . hazards of which the owner or occupier was aware or would have discovered through reasonable inspections.”

 What is Notice? ◦ Actual Notice - Actual means you discovered it, were told about it, or you created the hazard and are therefore charged with knowledge.

◦ Implied Notice - Where known circumstances are such that you should be able to infer and foresee the consequences of taking no action.  Grape Display  Rain / Bad Weather  Product sitting in display containing crushed ice

37 Notice Defendant Should Have Known Means you would have discovered it through reasonable inspections and managed it properly

 Nobody really knows what “Reasonable Inspection” means.  Juries can recognize “Unreasonable Inspections” ◦ No Inspection Whatsoever ◦ Client failed to follow and adhere to its own inspection schedule/procedures  What is the proper interval between inspections? ◦ Usually no more than 60 minutes depending on the area/premises/size/practicality ◦ 30-60 adequate for most situations ◦ Some circumstances require more frequent inspections  Who should conduct the inspection ◦ Managers vs. Porters or Maintenance Workers ◦ Maintaining records of inspections – Double edged sword

38 Open & Obvious Plaintiff Should Have Seen

 When a hazard is open and obvious, the Owner or Occupier of land has no duty to warn of the hazard. .  .Invitees must also exercise reasonable care while walking in a store. It is negligent for an invitee not to see what is plainly visible when there is nothing to obscure his or her view. A person is under the affirmative obligation to watch where he or she is walking, to exercise the sense of sight in a careful and intelligent manner to observe what a reasonable person would see. Walker v. ShopRite 864 A.2d 929, 2004 WL 3023089 (Del. Supr.)

39 Open and Obvious

DISTRACTION – Dispositive or Contributory?

 .If the invitee’s attention was drawn by displays or distractions benefiting the Owner or Occupier, or observed the hazard, but it was reasonable to expect the invitee not to avoid it, it is possible the invitee may be excused, despite the hazard being open and obvious.

 .However, if the distraction was self-imposed, i.e. looking for a child, walking quickly to the bathroom, answering an important cell phone call, distraction is not a viable counter to the open and obvious defense.

40 Restatement (Second) Of Torts §343A

Restatement (Second) of Torts § 343A (1) Under the Restatement, where the Landowner should have anticipated the harm was foreseeable, despite its openness and obviousness, the Landowner’s duty toward plaintiff does not vanish. Rather, the openness and obviousness of the danger goes to plaintiff’s comparative negligence.

(But maybe not . . . )

41 Restatement (Second) Of Torts §343A

 Plaintiff attorneys commonly argue §343A and interpretive case law establish that a Landowner always owes an Invitee a duty of care, regardless of the Invitee’s knowledge, conduct, or existing circumstances. It is argued that Plaintiff’s awareness of the danger is never relevant in a duty analysis. §343A Comment (f) contains demonstrative illustrations.

 In each illustration, the Invitee is made vulnerable by either: ◦ (a) being distracted (looking away from condition - goods on display); ◦ (b) being forgetful (failing to remember the existence of the condition - “miss[ing] her step” when getting down off of a high stool); ◦ (c) having obstructed vision (“arms full of bundles [blocking] her vision” of condition); and, ◦ (d) dire consequences (“forgo[ing] employment” if condition is avoided).

 Restatement Of Torts §343A Comment (f) may support limiting the duty of an Owner or Occupier of land. Each of comment (f)’s four illustrations depict invitees in need of protection, despite the openness and obviousness of the condition. You have O&O + something more.

 What if the Invitee is not vulnerable and completely focused on the hazard? (Traversing icy parking lot to look at carpet samples) 42 Open & Obvious

 Questions to ask at deposition Very important you use a script and keep repeating the questions until you get the correct answer . ◦ Had you looked at the floor, would you have been able to see the floor? ◦ Had you seen the floor, would you have been able to see the condition of the floor? ◦ Had you been able to see the condition of the floor, would you have been able to see what you believe caused you to fall? ◦ Had you been able to see what you believe caused you to fall, would you have done anything differently?

43 Questions – Open & Obvious

Deposition Transcript Used in Trial Last Summer Defense Verdict – 7/20/14 – Moore v. ShopRite

44 Questions – Open & Obvious

45 C. Working With Experts

 Safety Experts Opinions Are Vulnerable ◦ Too many variables at play to produce meaningful results ◦ No scientific theory will ever explain why this particular plaintiff fell. ◦ Safety Expert Opinions invite juror speculation (e.g. .175 COF = 3 out of 4 test subjects will slip – doesn’t translate to real world experience)

 Consultant vs. Trial Expert ◦ Safety experts are very useful as consultants ◦ Can assist with deconstructing plaintiff’s expert’s report/opinions ◦ Defense counsel should be wary of identifying experts for trial

46 Two Versions of this Incident:

1. ER Report: Tripped over a blood cuff machine 2. Witnesses: Slipped on trail of water from food cart

Slip Trip

Experts use different measuring instruments “Tribometers”

Some experts use a “0.5” as a “Pass”

Different “Tribometers” get different measurements.

 Spoliation ◦ Comes up frequently due to failure to preserve evidence  Did not save the object, product, or thing which caused injury  Insufficient video – No video of last alleged inspection  Last Inspection was 45 minutes prior to incident according to paper or electronic inspection record, but video only goes back 30 minutes prior to incident – Court may refuse to allow client to argue there was a recent inspection  No incident report or photos documenting the floor was clear  Mere Negligence by Client will not amount to spoliation

 Insufficient Investigation by Client ◦ No photos, incident report, witness statements or contact info for persons with knowledge

51 III. Calculating Damages

52 Calculating Damages – Plaintiff’s Perspective

 What Is It That the Plaintiff Has Lost?

 Lost Wages vs. Loss of Enjoyment of Career  Lost Ability to Labor  Use An Economist?

 Some Injuries Speak for Themselves

53 Considerations – Def. Perspective

 Medicare, Workers Comp. and other liens .  Some jurisdictions do not apply the collateral source rule to Medicare and only allow plaintiff to recover amounts actually paid by Medicare Stayton v. Delaware Health Corp., 2015 WL 3654325 (Del. June 12, 2015)

 Remember liens are usually negotiated

54 Negotiating With Insurance Adjustors

 Make Sure Adjustor Is Fully Informed  Understand the Insurance Coverage  Give Adjustor Sufficient Time to Evaluate Case

55 IV. Negotiating With Adjusters

 Two biggest barriers to settlement/ADR ◦ Lack of Information ◦ Lack of Time – Insufficient preparation by counsel

56 Lack of Information

 Information – Insurance companies have lengthy claims evaluation procedures they must complete in order to obtain settlement authority. They need the information required to document their files accordingly

57 Lack Of Time  Time – Insurance Companies typically need at least thirty or forty-five days to evaluate a claim, especially if it is large

58 59

Thank You

Richard D. Abrams [email protected]

David H. Fleisher [email protected]

E. Michael Moran [email protected]

60 QUESTIONS?