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Premises Liability

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 for guests.

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 Fall Cases

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 serious injury.
  • 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 plaintiff's injury.
  • 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 may deserve.

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.

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