Delaware County Personal Injury Attorney On Delaware County, PA Personal Injury Slip and Falls

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Automobile accidents and fall down cases are the most common types of lawsuit for personal injuries. The legal principles involved with these two types of cases differ greatly. I examine here the hurdles that must be overcome in order to receive fair compensation for injuries suffered as the result of a fall.

Generally, the most difficult problem involves the question of notice. The injured victim must prove that the defendant either created the hazard which caused the injury, or that the defendant knew or should have known of the hazard long enough before the accident to have removed or repaired it.

For example, when a pedestrian trips on a crack in a sidewalk, the P. I. attorney hopes to find someone who lives in the area of the accident who knows that the crack existed for a long time. Or photos may show that the crack was not of recent origin. It is then easy to show that the property owner should have known of it and should have had the crack repaired. The city where the accident happened may also have liability in sidewalk cases for failure to enforce the municipal requirements that sidewalks be kept in good repair. This is particularly important when the property owner carries no insurance on the property. In this situation, the government may be the only defendant against whom a money judgment can be collected. The city becomes the "deep pocket" or "target" defendant.

The next issue that almost always comes up in these cases is the victim's own failure to be careful. This is called "comparative negligence." (See Chapter 9 of the complete book for a discussion of comparative negligence.) Defendants argue that the claimant should have seen the hazard and avoided it. While this argument often reduces the total amount of compensation received, it usually does not defeat the claim outright. There may be valid reasons why the hazard was not seen. For example, when a customer in a grocery store slips on grapes, the customer's attention may have been drawn by a catchy advertisement or display put up by the store. This is a reasonable explanation which, if believed, should enable you to receive full compensation.

A thorough and prompt investigation can make all the difference in the outcome of fall down cases. Witness statements must be obtained and photographs of the hazard must be taken. Even short delays can hurt the case since memories fade rapidly and hazards get repaired quickly when injuries occur.

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Delaware County Personal Injury Attorney On Delaware County, PA Personal Injury Slip and Falls

Image : http://www.flickr.com

Automobile accidents and fall down cases are the most common types of lawsuit for personal injuries. The legal principles involved with these two types of cases differ greatly. I examine here the hurdles that must be overcome in order to receive fair compensation for injuries suffered as the result of a fall.

Generally, the most difficult problem involves the question of notice. The injured victim must prove that the defendant either created the hazard which caused the injury, or that the defendant knew or should have known of the hazard long enough before the accident to have removed or repaired it.

For example, when a pedestrian trips on a crack in a sidewalk, the P. I. attorney hopes to find someone who lives in the area of the accident who knows that the crack existed for a long time. Or photos may show that the crack was not of recent origin. It is then easy to show that the property owner should have known of it and should have had the crack repaired. The city where the accident happened may also have liability in sidewalk cases for failure to enforce the municipal requirements that sidewalks be kept in good repair. This is particularly important when the property owner carries no insurance on the property. In this situation, the government may be the only defendant against whom a money judgment can be collected. The city becomes the "deep pocket" or "target" defendant.

The next issue that almost always comes up in these cases is the victim's own failure to be careful. This is called "comparative negligence." (See Chapter 9 of the complete book for a discussion of comparative negligence.) Defendants argue that the claimant should have seen the hazard and avoided it. While this argument often reduces the total amount of compensation received, it usually does not defeat the claim outright. There may be valid reasons why the hazard was not seen. For example, when a customer in a grocery store slips on grapes, the customer's attention may have been drawn by a catchy advertisement or display put up by the store. This is a reasonable explanation which, if believed, should enable you to receive full compensation.

A thorough and prompt investigation can make all the difference in the outcome of fall down cases. Witness statements must be obtained and photographs of the hazard must be taken. Even short delays can hurt the case since memories fade rapidly and hazards get repaired quickly when injuries occur.

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Delaware County, PA Personal Injury Attorney On Delaware County Personal Injury Assumption of Risk

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Defendants may contend that plaintiff assumed the risk of an accident. The burden of showing voluntary assumption of risk and contributory negligence is on the defendants. Whitley v. Philadelphia Transportation Company, 234 A. 2d 922, 925 (Pa. Super. 1967).

The doctrine of assumption of risk "has been very problematic and has fallen from the favor of some of the judiciary and legal commentators. In fact, the doctrine as a separate affirmative defense has only narrowly survived abolishment by our Supreme Court." Bullman v. Giuntoli, PICS No. 00-1904.

The assumption of risk defense is made out only by showing that a person "with appreciation and knowledge of an obvious danger, purposely elects to abandon a position of relative safety and chooses to reposition himself in a place of obvious danger and by reason of that repositioning is injured." McIntyre v. Cusick, 372 A. 2d 864, 866 (Pa. Super. 1977)."

The defense of assumption of the risk will not prevent recovery unless the evidence conclusively establishes that the plaintiff was subjectively aware of the risk and voluntarily assumed it. Barrett v. Fredavid Builders, Inc., 685 A.2d 129 (Pa. Super. 1996). Voluntariness is established only when the circumstances manifest a willingness to accept the risk. Staub v. Toy Factory, Inc., 749 A.2d 522 (Pa. Super. 2000). Mere contributory negligence does not establish assumption of the risk. Id.

Rather, a plaintiff has assumed the risk where he has gone so far as to abandon his right to complain and has absolved the defendant from taking any responsibility for the plaintiff's injuries. Id. In order to prevail on assumption of risk, the defendant must establish both the "awareness of the risk" prong and the "voluntariness" prong. Id.

The defense is not available unless it is beyond question, such that no two reasonable minds could differ, that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition. Hardy v. Southland Corp., 645 A. 2d 839 (Pa. Super. 1994), citing, Howell v. Clyde, 620 A. 2d 1107 (Pa. 1993). Assumption of the risk cannot be used as a defense unless it is shown that plaintiff "must have appreciated the danger itself and the nature, character and extent which made it unreasonable." Crance v. Sohanic, 496 A. 2d 1230, 1232 (Pa. Super. 1985).

The Pennsylvania Supreme Court in Hughes v. Seven Springs Farm, Inc., 762 A.2d 399 (Pa. 2000), discussed the status of the doctrine of assumption of
risk in light of the passage of the comparative negligence statute and
stated that as a general rule, the doctrine of assumption of the risk, with its
attendant "complexities" and "difficulties," has been supplanted by the
Pennsylvania General Assembly's adoption of a system of recovery based on
comparative fault in the Comparative Negligence Act. 42 Pa.C.S.A. §7102(a)-(b). Where plaintiff tried to minimize her risk of falling, but fell nevertheless, she did not voluntarily assume the risk of falling. Barrett v. Fredavid Builders, Inc., 685 A.2d 129 (Pa. Super. 1996).

Finally, in Giosa v. School District of Philadelphia, 630 A.2d 511 (Pa. Cmwlth. 1993), defendant argued that the plaintiff assumed the risk of slipping on an icy sidewalk, "because Giosa fully understood the risk involved in walking on the sidewalk, and yet voluntarily chose to encounter it." Id. The Court held that since defendant owed plaintiff, a member of the general public, a duty to keep the public sidewalks clear from any dangerous conditions, the doctrine of assumption of risk did not apply. Id. Similarly, defendants owed plaintiff, Fran Kellenbenz, as a member of the general public, a duty to keep their sidewalk clear from any dangerous conditions. Similarly, the doctrine of assumption of risk does not apply and the Court should not charge the jury thereon.

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