I have been doing a decent amount of research for the past week and half regarding law about injury occurring on my property. I had a few people over for the house that day. Everything going good until a guest broke her wrist when she fell.
I have been the owner of this house for about a year. Its a fairly old house and things need to get done. One of the things on my list were to fix the stair railings leading to go upstairs. The stairs doesn't have handrails but rather the top surface of the stair railing is used as the handrail. I am not sure if that makes any sense. I have started to work on them but momentary stop.
They were pretty old and in rough shape, kind of unstable but still for the most part standing. I started working on the end of the stair railing by adding a new post.I was drilling a pole type about 4 1/2 to 5 inch in height into the flooring. This was going to be one of the main supports for the post to encase. I wasn't complete and it was pretty obvious I was working on it. I didn't mention it to the guest but I would have thought that they would be able to see it. She said that she was making an attempt to use the stair railing while going up. She stated she knew they were kind of weak and was being cautious while using them because she didn't know if they could give out any moment. In an attempt to do this she falls over that pole. Would the open and obvious work for me to relieve liability, why or why not? The thing wasn't hiding from her. She shouldn't have been using the stair railings when she knew it was weak, she isn't old or disabled. Am I right? I don't see it reasonable for a person to use something they knew was weak. Would the stair railings come into play? She only tripped over the support pole for the post.
If you have insurance, turn it over to them and see if they think you are at fault. The situation is more difficult because the person injured is a friend. If she has health insurance you might want to consider helping with any deduct. she might have to get it settled. If she files suit, hire an attorney if you do not have insurance.
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The fact that the condition may have been open and obvious really only impacts your duty to warn your guests of the danger, it doesn't necessarily negate your duty to provide a safe means of getting up and down the stairs. The way your guest actually fell is a little unclear which may ultimately impact your liability. You should really turn this over to your homeowner's carrier and refrain from posting any more facts on this site. A plaintiff's attorney will have a field day with the information you've provided.
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She shouldn't have been using the stair railings when she knew it was weak, she isn't old or disabled. Am I right? I don't see it reasonable for a person to use something they knew was weak.
You are the homeowner, you are responsible for a defective condition - which you were well aware of. You have some exposure. Turn this over to your insurance carrier. They will assign counselmif necessary. If your friend bears some responsibility it will be sorted out.
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If you have insurance, you MUST turn this over to the insurance company. If not, then you must hire an attorney to 1) defend the impending lawsuit and 2) discuss asset protection with you. You are not an attorney, and cannot handle this yourself. Your analysis of the legal theories and analysis do not matter in court. It's the ability to frame the case, and obtain the necessary information, which matters. MOST IMPORTANTLY, you must not post on public message boards, because you have given enough information so that someone familiar with the incident could easily identify you, and you have essentially admitted your negligence in writing on a public forum.
Its sounds to me based on the facts as you present them, that you may be liable, notwithstanding the "open and obvious" defense which may or may not apply. First, regardless of your negligence or failure to maintain your property in a safe condition your homeowners insurance will indemnify you upto the limits of your policy. Second, your policy should contain med- pay provision which will pay some or all of your friends out of pocket medical expenses upto the limit of the med-pay which is usualy 1k.
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