A tenant slipped on a step in my house and had a sore butt for a few days. There was no handrail, which I have previous knowledge of. The house was under minor renovations, which she accepted for reduced rent.
She has no doctor's report, and admitted she was fine a few days later.
I can prove in court she is an emotional and financial mess, and is not in this because of pain and suffering.
The settlement is rather small - but it's the principle that is keeping me from accepting it.
Do I have a shred of liability that would lead me to take the settlement?
I presume an insurance defense attorney is involved representing you -- that's where you need to go to ask these questions.
If you have no counsel (thus, no insurance), no one on a message board can tell you that any particular settlement is or is not just due to the lack of information available (lawyers are careful that way).
Best of luck to you!
If you have liability ins, it should be handling this for you. Unless you have a large deductible of some sort, the ins co can settle even if you dont want them to. If you have no ins, the pltf generally must show by a mere preponderance, that you were negligent, and she was damaged. If you had bldg code violations, that could support her claim. I dont know if there was anything else about the property that made it dangerous. If she has medical expenses, she can testify to them, as well as her physical pain and suffering. It helps if she has medical documentation of her injuries, records and reports. If this is small claims court, the judge can accept her testimony, but it would be better for her if she had a medical report. You may have arguments about liability, such as assumption of the risk, comparative fault, etc. You should talk to your ins co or a local lawyer to see what defenses are availble to you in your state. If you have relevant info to show she didnt act like she was hurt or in pain after this, those witnesses would be helpful (eg saw her engaging in normal physical activities after in no apparent distress, such as running, carrying groceries, riding a bike, etc).
To prove that you are liable for her injuries, the tenant must prove that the lack of a handrail created an "unreasonable risk of harm" to the tenant. That is generally a question for the finder of fact i.e., the judge or jury. You will probably be found liable if the applicable building code required a handrail. Regardless, if you are sued you should immediately retain an attorney to defend you.
If the settlement is "rather small", you might want to accept it especially if you do not have any liability insurance (which you did not mention in the question). Review what all of my colleagues have stated and consider your situation and then make your choice. Not having handrails where there should be handrails according to your state's regulations, could be a real issue for you.
A judge can absolutely consider a personal injury claim without a doctor's report. Expert medical testimony may be required to prove SOME things - if you want to prove a fact that you would need specialized education or training to understand, this will usually require an expert. For example, if an injured person wanted to prove that their shoulder injury will be permanent, this would take more than just the injured person saying "gee, I think it'll always hurt."
But some things absolutely don't need expert testimony. Say for example that a criminal chops off someone's hand and the injured person then sues the criminal for assault. In that case, the injured person doesn't need a doctor to prove that they've lost their hand - all they have is a stump. The judge won't need a doctor's report to see that.
1001 Southwest 5th Avenue #1100
Portland, OR 97204
Whether to settle is up to you. Your attorney can advise you if the offer is good or bad, but still your call in the end.
As a property owner you have a duty to keep the premises safe, disclose known dangers, and so forth, but the other person has a duty to avoid open and obvious dangers also. To completely understand all the duties and defense is difficult.
Generally, a person has a right to be compensated for their damages due to the negligence of another. Damages are usually based on 3 things in a personal injury case, 1, medical bills, 2, lost wages, and 3, pain and suffering. The 1st two are easy to calculate based off the medical bills and wage verification information, however, the pain and suffering is more difficult. It comes down to what a jury will think. For example, a sore butt seems minor stated that way, but testimony that this person had broken tail bone is bad, as they can not sit, drive, etc.
With that said, all the elements of negligence must be established, for example did you have any duty owed to this tenant? If so, did you breach that duty? If so, was your breach of that duty the direct and proximate cause of the tenants damages? As you can see this gets complicated fast.
So, you or your attorney can evaluate all these factors and decide if you should settle or not. I believe that you are making a business decision on how much it will cost you to defend the case, rather than whether if is about "the principle" of things, but again - its your call on that one!
Best of luck to you,
Unfortunately, there are people who will try to take advantage of a situation like this to make money. I understand your frustration, but consider letting your insurance company settle. You don't need the hassle and could use your time doing something more productive. Good luck!
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