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In a state where contributory negligence applies (even 1% fault) is there any chance/sense in pursuing premises liability case?

Waldorf, MD |

Even if property owner had structural defect, proven to have been there for some time, and still existing after incident? Is there any retort that could supercede the contribuory negligence argument (i.e., building code/premises violations), lack of warning/signs indicating potential hazard, (last chance rule)? Can these cases be appealed if such verdict is made? And would praying jury trial be the better venue?

Attorney Answers 7

Posted

Your question is not very clear. if you are asking if there is a structural defect in property and that lead to you being injured, and the deft claimed you were partly at fault, would you be better off with a jury hearing he case, and can an adverse judgment be appealed?

The question as to whether a judge or jury would be better, is difficult. it depends upon the judge and the types of jurors in the juror pool. You may not have a choice as the deft may demand jury.
I dont know the way comparative fault is treated in your state. In Ca where I practice, if you are found 50% at fault, your damages will be sliced by 50%. Are you inferring that in your state if you are found at all at fault, you automaticlly lose? Best check with local counsel
Appeals are costly and more are lost than won.

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Asker

Posted

Yes, I'm in Maryland, and it is unfortunately one of the 5 states left (as I've been told), that comparative fault does not apply..so even if found at a mere 1% negligent, then I would be entitled to no recovery whatsoever (which I think is extremely unfair, especially considering circumstances (i.e. what if it were a pregnant woman who fell as a result of the owner's negligence, but someone determined that she could have possibly avoided it, resulting in maybe a 1 or 2% "negligence" on her part although largely the fault of the property owner, and she lost the baby- absolutely no recovery/compensation for her loss). Shouldn't the property owner face ANY consequences? I would think such a law would enable business owners to not ensure their premises were safe whatsoever, to save them money, no matter what dangers lie for their customers.

Posted

As you know, Maryland currently is a "contributory negligence" state, which means that if you are 1% at fault you could be barred from receiving justice for your damages. There is currently a case before the Court of Appeals (MD's highest court) which addresses whether MD should join the 46 other states and switch to "comparative negligence". There are many questions surrounding this case if the Court rules in favor of switching; i.e., will the change in law apply to prior injuries or only to ones after the date of the Court ruling. I recommend you contact a lawyer who understands the current state of MD law to get guidance.

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Posted

I'm glad for your response..I read about the consideration of it being changed, and that was going to be my next question- if it would only apply to cases that happen after the ruling, or (hopefully) could it apply to cases in which the injury occurred before the ruling, but still in the statute of limitations if/when the law takes affect (in the middle of the case/litigation).

Posted

Your post poses many questions which require much investigation to properly answer. You need to consult a local personal injury attorney with all the facts and let the thoroughly investigate the incident and advise you accordingly.

Call for a free consultation at 727-937-1400 or visit us on the Web at www.serviceandjustice.com.

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Posted

Your question is confusing: have you already filed suit and lost on the contributory negligence defense? Why are you talking about appeals and praying jury trial at the same time, unless this was a small claims matter (suit for under $5,000.00) and you lost in District Court, and now want to appeal to the Circuit Court? If suit has not been filed, then the choice of proceeding in district versus circuit court involves weighing a number of factors. District court has no jury trials, and the limit of your claim is $30,000, but there is a procedure whereby you can document your medical bills and injuries simply by submitting your medical bills and record without the testimony of a doctor. If you start in Circuit court in order to claim more than $30,000 or because you want a jury trial, you would have to pay your doctor's expert witness fees to appear and testify ($3,000-$5,000 or more), and those costs are not recoverable as part of your damages. An appeal after losing on the contributory negligence defense can be costly and difficult to reverse, unless it is of the small claims variety on appeal from district to circuit court, in which case you simply get a new trial. Whether the defenses of contributory negligence and assumption of the risk apply to your case depends on a detailed analysis of the facts and circumstances of what happened. Usually, in slip and fall cases, assumption of the risk is the common defense, because the plaintiff is alleged to have knowingly walked into an are with a dangerous condition, and tried to pass through, thereby "assuming the risk" that he/she might fail to make it through without falling or getting injured. Building code violations help you establish primary negligence, but say nothing about contributory negligence or assumption of the risk. Lack of warning signs weakens the property owner's claim that you assumed the risk of a known danger (because they could argue you were warned and put of notice), but it does not mean you are not at fault for failing to observe an open and obvious danger and/or having knowledge of it deliberately proceeded to encounter the danger. These defenses come up frequently, and are almost always a factual determination by a judge or jury. The defenses are weak or strong depending on the details. Your question provides none. You need to sit down with a personal injury lawyer and go over all the details.

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Asker

Posted

Ok (and I will likely reword in a different post as there are a few comments that point out ambiguity about this one). Nothing has been pursued or taken to court yet, that is what I am trying to decide. In phone/email conversation with a lawyer, he pointed out that MD is a contributory negligence state (even if the judge or jury find the plaintiff at 1% fault (i.e. should have been able to see the pothole) I am completely BARRED from recovery. I did not see it, it happens to be in the path of oncoming traffic where my attention was reasonably diverted to my right to look for cars, there were no signs, none of the workers told me to look out for it on my way out, and it was while walking from the exit of their store (after purchasing goods from them) on my way out to my car that was parked in one of their customer parking spaces. When I called the owner later that day, he said "yeah (sounded as if he was made aware of it by employees- 911 was called from their phone) and said "just come by when you are feeling better, we have insurance for that" So it sounds like I have more hope of getting at least my wages back (which I mentioned to him on the phone) just going there personally, rather than pursuing the time and trouble through the courts, considering this happened in Maryland, where I may not get ANYTHING back.

Asker

Posted

I'm sure if this happened in one of the "reasonable" states where at least SOME recovery can be made, even with comparable negligence, then it would be more worthwhile going through an attorney and the courts. Despite any valid and reasonable arguments I may have (in addition to owner's liability) in my defense that there was no assumption of risk, and that I was in no way negligent, it would only take the decision of judge or one/part of a jury to make this rightful legal attempt to recover, go straight down the drain in Maryland.

Mark William Oakley

Mark William Oakley

Posted

The insurance the store manager was probably referring to is a "med pay" policy provision of their general liability coverage, which will only pay medical expenses up to a certain limit ($5,000.00 typically). This type of insurance is paid without regard to fault. There would also be a general liability policy covering the premises, that pays for much more than just medical bills, and would include things such as pain and suffering, lost wages, permanent impairment, etc. If it was their lot that had the pot hole, they are liable, in the absence of their proving contrib or assumption of the risk on your part. Just because they raise the defense does not mean they prevail, or that they would not settle. It may result in a lower value based on the chance that they might prevail on such a defense, but these are the type of claims that can often result in a favorable settlement or judgment in the injured party's favor. The store manager will not be the one settling the claim, nor will he be able to 'accept liability" or offer you any money. Only the insurance adjuster assigned to handle the claim by the store's insurance company can do that. There's no point is relying on what the store manager says. However, you should report the claim so it is submitted to their insurance company. You should not, however, give a statement, recorded or otherwise, without talking to counsel. The insurance adjuster will take any statements or admissions you make to the store manager, as well as any recorded statement you give, and try to use those statements against you in order to deny the claim or make a low-ball offer. An open pot hole is something that the store/property owner would have knowledge, constructive or actual, that would satisfy the liability aspect of the claim. The question is whether you should have seen it. You may have a very good claim, liability-wise.

Asker

Posted

Thank you. I appreciate your response, it is very detailed and specific. So, in reporting the claim do I go there and give the owner the medical documents or just tell him what happened/when, and what should I be careful not to say?

Mark William Oakley

Mark William Oakley

Posted

This is why you should hire counsel. If you insist on proceeding on your own, just stay away from HOW the accident happened, and just say you were injured when you stepped/fell into/tripped on the pothole. You went for medical treatment and incurred bills. You will/may require additional treatment. You have not healed or recovered completely, and will follow up. You missed time from work. Get the name and contact info for both the person who you report this claim to, the store number (if a chain store with many locations, they have a store number), and the name, address and telephone number of the store's insurance company. Do not minimize or describe your injuries beyond the general locations where you felt pain. But really, you should not do any of this. A lawyer should submit the claim for you so that you do not screw this up. The claim could be lost as soon as you start to describe what happened, without you even realizing it. A lawyer can act as your go-between, shielding you from making any admissions against your own interests. This protects your version of what happened from the trained and experienced insurance adjuster who is going to try and steer your description into the ditch of contributory negligence and assumption of the risk.

Posted

Seek the assistance of a personal injury attorney in your area who gives free consultations. You need to discuss all details in depth with an experienced attorney who can hash out all of your concerns. Good luck.

The above is general information only and is not legal advice. The information provided does not form an attorney-client relationship, and should not be relied upon to take or refrain from taking any action. I am not your attorney until we sign a retainer agreement.

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Posted

More information is needed. Call one of the above lawyers in your state to discuss in detail.

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Posted

These sound like jury questions. Whether the property owner was negligent may be a jury question depending on several facts. Contributory negligence is similarly usually a question for the jury. Depending on the specific facts of your case, there will be caselaw directly on point which will determine if the victim is contributory negligent as a matter of law, or if the facts are sufficient that the case can be decided by a jury. Without knowing more specifically what your actual facts are, it's not really possible to say. You will need to call a premises liability attorney in Maryland.

Legal disclaimer: *The information here is for educational purposes only and should not be relied upon without first consulting with an experienced attorney. The information given may not apply to your individual situation and should not be construed as legal advice. Laws, regulation and procedure change frequently. This information should not be relied upon as legal advice and is not intended to create an attorney-client relationship. Please note that this site is open to the public and any information posted by readers can be viewed by government officials.

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