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

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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 9 OVERVIEW OVERVIEW 95% of all claims for injuries on commercial property are the result of hazards located on the floor of the premises. 10 1 Unintentional Injury Deaths – 118,000 34.3 million people – about 1 out of 9 – sought medical attention for an injury2 Transport (vehicle 3 accidents) 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 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 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 © Fleisher Forensics © Fleisher Forensics 14 I. Assessing Cases 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 20 WHO IS THE TARGET DEFENDANT 21 TARGETS Property Owner Property Manager Tenant Vendor Parties In Joint Control 22 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 © Fleisher Forensics 24 Adoption Dates and Governing Codes What Model Code is not enacted in UCC? Property Maintenance Code 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. © Fleisher Forensics 25 Determine the Adoption Dates and Governing Codes When are Guards Required at Landing? Example BOCA and ICC Building Codes 1975-1987 :Violation 1990-1993 :Compliant 1996-1999 :Violation 2000-2009 :Compliant © Fleisher Forensics 26 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 30 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
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