Answering Your Questions About Premises Liability
At Queller, Fisher, Washor, Fuchs & Kool, L.L.P., our New York City
premises liability attorneys and personal injury and wrongful death lawyers are experienced in protecting
the rights of clients who have been seriously injured and the families
of those killed on business, public or private property.
Business owners, landlords, private property owners, and even state and
municipal owners of everything from government buildings to parklands
and public pools have a duty to provide a safe and secure environment
When they don’t, innocent visitors can be seriously injured or killed.
Those injured and the families of those killed have a right to be compensated
for medical bills, pain and suffering, lost wages, disability, and other
issues arising from the accident.
The New York personal injury law firm of
Queller, Fisher, Washor, Fuchs & Kool represents people seriously injured or killed in a wide range of premises
liability claims, including:
Common Legal Issues in Premises Liability, Slip and Fall, and Trip and
In most New York State injury cases that occur on the property of a landowner,
homeowner, lessor, lessee (tenant), or involve a person or entity that
controls safety at a location, there are certain common legal issues that
arise which may be crucial to proving liability against the potentially
negligent party (also known as the "tortfeasor").
The first issue involves control of the property, and whether the potential
defendant in a personal injury lawsuit had the ability and/or presence
at the site to have the knowledge and or opportunity to be aware of the
problem or defect that caused injury. By proving that a defendant did
have knowledge or the opportunity to be aware of the problem or defect,
it becomes clear that the defendant had the opportunity to fix the problem.
The issue of "control" of the property typically arises when
the landowner denies they are at fault by claiming that they gave full
possession of the property to the lessee/tenant, and thus had no legal
responsibility. They typically argue that they lacked responsibility because
they had no knowledge or control of any conditions on the property. When
a property owner makes such a claim, it becomes important to test their
validity. Testing the validity of a property owner's claims becomes
especially important in instances when the property owner may have adequate
insurance to cover a loss for serious personal injury or death, while
the tenant of the property may have little to no insurance at all.
The answer to the question of whether the owner or lessor of the property
may be legally liable for damages in the aforementioned situation may
hinge on the quality of the representation given by an injured party's
attorney, especially in regard to challenging the owner's claim that
they were "out of possession" and thus not responsible for the
accident. It is very important in such situations to carefully find out
the extent of not only the owner's involvement with the rented property,
but the involvement of any of the owner's employees, agents, and servants;
including superintendents, handymen, rent collectors or anyone else that
had access to the premises through the owner. One must also find out who
had a key to the premises and under what circumstances were they permitted
to unilaterally, or with permission, enter the premises.
In this regard, the attorneys at Queller, Fisher, Washor, Fuchs, &
Kool endeavor to perform a full scale investigation in order to uncover
all potential employees that may have had access to the premises. During
the course of litigation of premises and trip/slip and fall cases we routinely
depose each person in order to find out the involvement and/or presence
that the owner or his employees and agents had at the property.
The level of the involvement or presence of an entity or person at a location
where a serious injury has occurred relates to the issue of "notice."
Notice is a legal concept which says that a party will not be liable or
found negligent for an injury unless they "knew or should have known"
of the defective or dangerous condition that caused the injury. Alternatively,
a party might be found negligent if they created the defective or dangerous
condition that led to the accident or injury; although in this case the
issue of notice is not relevant because liability derives from the affirmative
negligence of the tortfeasor or negligent party. An owner will often give
the excuse that they were "out of possession" and never present,
claiming that they gave full possession to a tenant, so that they can
claim that they did not know nor could they have known about the defective
or dangerous condition that caused injury. In a personal injury or death
case showing that the responsible entity actually was aware of the dangerous
condition can be crucial. This is known as "actual notice" and
demonstrating it is goes a long way toward proving liability.
Absent actual notice, what is known as "constructive notice"
may also be sufficient to prove liability. Constructive notice is most
often proven by presenting evidence that the dangerous condition was present
for a prolonged period of time, or at least for a long enough time that,
in the exercise of reasonable care, the responsible party knew or should
have known of the condition and thus done something to correct it. Proving
that a responsible party had actual or constructive notice often involves
obtaining the testimony of eyewitnesses who have knowledge, through their
observations, of conditions that existed. These observations could involve
transient conditions such as the presence of snow or ice, or the presence
of a slippery substance, such as on a stairwell or in the aisle of a grocery
store. If the witness can attest to the presence of the dangerous condition
for a period of time within which it should have been cured, then liability
may attach to the responsible party. In some cases, the nature of the
condition itself may be evidence of how long it was present (such as the
buildup of a large amount of dirt or debris). On the other hand, if for
example one slips on water on a stairwell, with no evidence of how long
the water or liquid was present, than proving notice may be impossible.
For instance, another tenant spilled some water moments earlier, without
presenting the landlord with the opportunity, even in the exercise of
reasonable care, to clean the dangerous condition.
The aforementioned example of "Constructive Notice" highlights
the fact that having an accident and sustaining an injury does not automatically
entitle one to compensation. Proof of negligence, which is the failure
to exercise reasonable care, is essential to obtaining compensation in
a lawsuit. Moreover, the law in New York State places the burden of proof
upon the Plaintiff (the injured party) to prove that it is more likely
than not that the Defendant was negligent. Another more technical way
to describe this burden of proof is to say that the Plaintiff must prove
his or her case based on a preponderance of the evidence in favor of the
Plaintiff. If from the evidence there is no inference or preponderance
one way or another, the Plaintiff has not met her burden. Proving liability
in a civil personal injury case involves, at a minimum, tipping the scales
even ever so slightly in favor of the proof set forth by the Plaintiff.
Proving notice is crucial to meeting this burden of proof in any type
of premises accident.
At times, notice of a defective or negligent condition cannot be proven
through ordinary or what is known as "lay" witnesses. This could
simply be due to happenstance or because a dangerous condition is not
open or obvious to be noticed by a mere passerby. As such, the issue of
notice must often be proven through the opinions of experts. For example
we at Queller, Fisher, Washor, Fuchs and Kool have retained a vast array
of experts in different fields to show that a Defendant in a lawsuit should
have, in the exercise of ordinary care, known of a defective condition.
The lack of such knowledge or awareness often derives from a failure to
properly maintain one's property. Indeed, homeowners, business owners,
tenants, and landowners often forego much needed maintenance and repairs
in order to increase profits, at the expense of persons who are seriously
or catastrophically injured, or even killed. Some examples of types of
experts who have been retained by Queller, Fisher regarding premises accidents
to show that a Defendant knew or should have known of a dangerous condition,
or even caused the dangerous condition, include the following:
- Retention of an electrician or electrical engineer to prove liability in
wrongful death caseswhere our clients have been killed by electrocution.
- Retention of safety professionals for playground and many other types of
accidents involving children.
- Hiring engineers to prove lack of maintenance or poor design in accidents
involving falling objects or collapsed ceilings or collapsed roofs causing
serious injury or death
- Hiring of door safety experts in cases involving defective doors that cause
- Utilization of experts to examine and opine on the condition and maintenance
of floors, stairways (including analysis of step width, step treads etc.),
handrails, and bannisters, including but not limited to doing safety tests
and giving opinions on whether conditions complied with applicable codes.
While these examples represent only a small fraction of types of premises
accident cases we handle and types of experts we employ as your attorney,
this aspect of our representation is part of the all important common
thread of proving "Notice" of the defective or dangerous condition
that caused your injury. Performing a complete and thorough investigation,
deposing all witnesses with knowledge, and hiring the appropriate expert
witnesses can be equally important and essential to your representation.
Your attorney should have specific and thorough expertise in this area
in order to properly represent your interests and to prove that a responsible
party who unjustly denies responsibility, was negligent because they knew
or should have known of the dangerous condition that caused your accident.
he most common types of injuries caused by fall down accidents include
fractures of bones that require surgery known as “open reduction
with internal fixation.” This means that the bones are so badly
fractured that in order to “reduce” the fracture major “open”
surgery needs to be performed under general anesthesia whereby the fracture
is treated via the placement and insertion of hardware. The hardware may
include material such as metal rods, plates, and screws, in order to help
enable the fracture to heal. Often the hardware will remain in the victim’s
body for the rest of that person’s life. Alternatively, other major
surgery is often needed in circumstances in which the hardware can and
should be removed. Also, such injuries often involve “articular”
fractures, which is another way of saying that the fracture occurred at
a joint (ankle, knee, elbow, wrist, etc.). Such articular injuries are
notorious for leading to long term pain and discomfort, particularly as
it relates to suffering from post-traumatic arthritis. More serious injuries
including traumatic brain injuries and death also unfortunately may result
from a slip and fall or trip and fall accident.
Does Your Injury Entitle You to Compensation?
Not all individuals who have suffered an injury on another person's
property have a valid slip-and-fall lawsuit. In order to have a valid
case, the victim must be able to prove at least one of the following:
- The property owner caused or created the hazardous area, leading to the
- The property owner knew or was informed of the hazardous area.
- The property owner had constructive notice. Constructive notice means the
property owner should have known about the hazardous area because it was
prominent and existed for a long enough time that a reasonable person
would have noticed and had time to make the appropriate repairs.
The plaintiff must also be able to prove that the property owner's
negligence was directly responsible for their injury. In other words,
the property owner's negligence does not necessarily constitute liability.
For instance, if the property owner neglected part of their premises,
but the victim suffered an injury on another part of the property that
was not hazardous, they do not have a valid lawsuit as negligence was
not the direct cause of their injury.
The injury must have also forced the victim to suffer either economic or
non-economic damages. Economic damages are any monetary harm the victim
may have suffered due to their injury. Lost wages not covered by workers'
compensation and high medical bills not covered by insurance are both
examples of economic damages. Non-economic damages are long term physical
and emotional stress that the victim suffered due to their injury.
Injured Individuals Should be Aware of the Statute of Limitations for Premises
Liability and Slip-and-Fall Cases
Typically, the statute of limitations for filing a premises liability lawsuit
is 3 years from the date of the injury. There are some instances, however,
where the statute of limitations may vary. For instance, if a victim is
under 18 when their injury occurs, the statute of limitations would not
even start until their 18th birthday. As a result, the statute of limitations for minors would expire
on their 21st birthday. Furthermore, the statute of limitations can vary if the victim
plans to sue a municipality or the State of New York.
Due to the statute of limitations, individuals who have suffered injuries
in a slip and fall accident should not hesitate to contact a personal
injury lawyer. Failure to file a claim before the statute of limitations
requires can forever bar victims from receiving the compensation they
The New York property injury lawyers at Queller, Fisher, Washor, Fuchs
& Kool offer free appointments to discuss your rights.
Call the New York law office of Queller, Fisher, Washor, Fuchs & Kool at
212-406-1700 to discuss your case.