Special Concerns about Stairs

Stairs present a number of special dangers, some obvious, some hidden, that cause thousands of people to trip or slip and fall every year. With the more obvious defects a torn or loose carpet, or a step or handrail that breaks the liability of the property owner is usually clear. With things that have been spilled or dropped or left on stairs, the responsibility of the owner is the same as described above in any slip or trip accident.

But in addition to normal considerations of things spilled or left on stairs, there may have been additional dangers with stairs that made your fall more likely. Some defects in stairs may remain hidden even after your accident. As for these, you may have to make an effort to figure out what happened and how the stairs should have been constructed or maintained differently.

Slippery Surfaces :A common hidden stair danger is worn-down carpet or wood that makes the “run” part of a stair the part your foot lands on dangerous, both going up and coming down. Even a slightly worn stair or carpet, particularly on the edge of a step, can be perilous because a person is not likely to notice slight wear and may be even more likely to slip than on obviously worn stairs. Some stairs may have a tile or highly polished wood surface that is more slippery than stone, painted wood, or carpeted stairs. If so, the owner may have sacrificed safety for beauty and may now be liable because of that choice.

Wet or Icy Outdoor Stairs :Many people slip and fall when rain, snow, or ice collects on outdoor stairs. The first response of an insurance adjuster is often to say that the property owner is not responsible for the weather, and that everyone must be extra careful when it has been cold, raining, or snowing. While this is partly true, it does not end the question of the owner’s negligence. Outdoor stairs must be built and maintained so that water or ice does not build up excessively on the stairs. If there was an extra buildup of rain, snow, or ice on which you slipped, the step was dangerous and the owner should be liable. Further, an outdoor step must have a surface that does not become extra slippery when wet or icy. If an outdoor step does not have an anti-slip surface, the owner has not taken reasonable safety precautions and may be liable if you slip and fall.

Building Code Violations :Every state, and virtually every county, has a building code that must be followed by builders and owners when constructing any building, including the stairs. Your city or county building permit department, any local law library, and perhaps your local public library, will have a copy of your state and local building codes. Check the stair requirements of the codes to see if the stairs on which you fell fail to meet any specifications. If your fall occurred on, or was made worse by, the part of the stairs that fails to meet the code, the code becomes very strong support for your argument that the stairs were dangerous. A building code stair violation might be measured in no more than quarter inches. But even a very small violation can make a set of stairs dangerous. You need not use technical or legal language in citing a building code violation to support your injury claim. The code simply provides you with an official declaration of the minimum of safety for a set of stairs. If the stairs you fell on did not meet the standard set by the building code, you have a very strong argument that the stairs were not reasonably safe, regardless of how, or even whether, the building code actually applies.

Handrails - Most building codes require one or more handrails on stairs of a certain width or a certain height; some building codes also have different requirements for commercial  premises, multiple unit apartments and private homes. Building codes also require that handrails be installed properly that is, firmly attached and at a certain height. Reaching for a handrail that is at the wrong height can actually cause you to fall when nothing else is wrong with the stairs.

Improper stair height or depth - The vertical and horizontal part of each step are called the “riser” and the “run,” respectively. Building codes prescribe a maximum and minimum riser height for each step, and a maximum and minimum depth for the part on which you put your foot, the run. If you have slipped or taken a sudden and unexplained fall on a stair, measure the stair’s risers and runs, and compare the measurements with the minimums and maximums in the building code. If either the riser or the run violates the code, the stairs were defective. The question then becomes whether the defect caused your fall. But once you have established that the stairs were defective in a basic way the wrong height or depth you have gone a long way toward showing that the stairs were dangerous. Unless the building owner’s insurance company can show clearly that you fell because of your own carelessness, the improper stair alone will normally be enough to gain a settlement for you.

Uneven stair height or depth - Building codes not only set maximum and minimum stair heights and widths, they also set a maximum variance from one step to another that is, the differences permitted in the heights and depths of any one step from another. The variance standard is important because when we go up or down stairs, our brains remember how far the last steps were and automatically tell our legs to move the same distance the next time. If the leg moves the same distance but the step isn’t in the same place even slightly we may lose our balance and fall. So, even if each riser and run is within the code limits, variance from one step to another may violate another section of the code and create a dangerous set of stairs.

Personal Injury Claims - Part 2

5. What is an injury?
Even if someone admits they were at fault, you can only claim compensation if you have suffered an injury (or illness) because of their fault.
Injury means physical or psychological harm. The injury must be more than minimal & you must suffer actual symptoms. Your solicitor will need to get a medical report to confirm that you suffered an injury & to tell the court.
(a) What is the likely cause of the injury? &
(b) What is the extent of the injury?

6. What is fault?
You can only claim compensation if your injury was caused because of the fault of someone else. Someone is legally at fault (or liable) if they are negligent & or if they break a law or regulation (known as “breach of statutory duty”). Often the injured person (“the claimant”) will allege that the person at fault (the “Defendant”) was both negligent & in breach of statutory.

7. What is negligence?
Negligence is usually defined as behavior or conduct that is blameworthy because it falls short of what a reasonable person would do to protect another person from a foreseeable risk of harm. If an injured person proves that another person acted negligently & or in breach of statutory duty to cause his injury, he can recover financial compensation (or damages) for his harm.      
Sometimes a person can be injured by an accident that was not the fault of anyone & there is no claim to be made.

8. What is financial compensation?
Financial compensation is money. Sometimes compensation is called “damages” & the amount of damages is call “quantum”. These are legal terms that you may hear.
(i) General damages
This is the lump sum payable to compensate the claimant for their pain, suffering & loss of amenity. The amount payable is dependent on the seriousness of the harm & the extent of the symptoms or disability. The general principle is, the more serious the injury the higher the award of general damages. Judges & solicitors refer to guidelines called “the judicial studies board guidelines” which are published annually & which classify awards for the most common injuries in a sliding scale of severity. To more precisely pin down the likely award of general damages, judges & solicitors also refer to actual decided cases (known as case authorities or comparable authorities).  
(ii) Special damages
This refers to past & future financial losses that can be proved to be a consequence of the injury. The most common special damages claimed are lost earrings, cost of lost or damaged items, cost of medical treatment & drugs.

9. What is the process for making a claim?
Why instruct a solicitor direct?
It is important to know that claims management companies do not allowed to & are not qualified to deal with court proceedings & as such can’t represent you if your case progresses to court. As soon as you instruct a claims management company, they will normally sell your claim to a firm of solicitors.

Claims management companies are therefore little more than the middle men, advertising for your claim before selling your details on to a firm of solicitors, often based on which firm is prepared to pay for the details rather than any analysis of who is the best firm to deal with the claim.
We advise you to cut out the middle man & deal direct with the solicitors who fight your case.

Personal Injury Claims - Part 1

PERSONAL INJURY CLAIMS

Frequently Asked Questions

1. Can I make a claim?

If you have been injured because of the fault of someone else, you can claim financial compensation through the courts. 

2. Who can claim?

If you are the injured person, then you can claim on your own behalf. You would be identified as a "Claimant".

If the injured person is under the age of 18 the Court will appoint someone to claim on their behalf called a “litigation friend” – this is usually a parent or close relative.

If the injured person is incapacitated and/or cannot make decisions for themselves the Court may appoint a "litigation friend". Again this is usually a close friend or relative.

If a claim is made on behalf of someone who has died their dependents and/or personal representatives have the right to make a claim.

The dependents and personal representatives (ie executor or administrator of estate) are sometimes, but not always the same person. For example: a wife whose husband has died will usually be a financial dependent and able to make a claim for loss of dependency in her own right. 

The personal representatives (or any one of them) can make a claim on behalf of the estate and the dependents. However, whilst the financial dependents have the right to claim on their own behalf, they cannot make a claim on behalf of the estate unless they are appointed personal representatives.

                                 

Personal Injury

3. Is there a time limit for making a claim?

Yes – in most cases you have 3 years from the date of the accident to settle the matter or Court proceedings need to be issued. You can make a claim at any point during these 3 years, though generally speaking the earlier you consult a solicitor the better. However, if you do not settle the matter or issue Court proceedings within 3 years then you are too late to do so and your claim will become statute-barred. The statute in question is the Limitation Act 1980.

If there was no accident as such – for example if you are suffering from an occupational illness such as stress at work, occupational dermatitis, deafness or asbestos related disease – then you have 3 years from the date you first knew (or should have known):

a) That you are suffering from that illness, and

b) That it is potentially compensable. Usually this is 3 years from the date of diagnosis.

If someone has died their dependents or personal representatives have 3 years from the date of death to make a claim, if the 3 year period has not passed during the injured person's lifetime.

If the victim is under the age of 18, the 3 year period will not start to run until their 18th birthday.

4. What if the 3 years have passed?

Occasionally if there is a very good reason for the delay the Court will allow a claim to be made “out of time”. However these instances are rare and it is a matter for the Courts discretion. The safest course of action is to bring a claim within the 3 year limitation period. 

Accidents Involving Children

The law assumes that children don’t have the same well-formed judgment as adults do, & has fashioned special rules for compensation & liability in accidents involving children.

Injuries to Children

                Although the procedures for collecting compensation for a minor in most states, a person under age 18 vary somewhat from state to state, in general a child has a right to compensation for pain & suffering, permanent injury, or disability in the same manner & for the same amounts as an adult. Also, parent has a separate right to be compensated for medical bills paid on behalf of a child. Obviously, a child can’t negotiate a claim, so a parent is permitted to negotiate on behalf of the child. In some states, the parent must get the approval of a judge before the child’s claim can be finally settled. This process is usually short & straightforward, & involves nothing more than the filling out a simple form & filing it with the court for approval. An insurance company you reach a settlement with can help by providing you with the proper form & giving you instructions on where to file it. It is in the insurer’s interest as well as yours to see that the settlement is properly approved so that a lawyer for the child doesn’t go to court months or years later & claim more money for the child. The form will also be available from the court clerk’s office.

Accident Caused by Children

                Legal liability for accidents caused by minors is based on the same notion of care & carelessness as accident caused by adults. But the same standards of care that are expected of an adult can’t be applied to minors. Carefulness implies understanding risks, & minor’s particular young children don’t understand risks the way adults do. The law applies different standards to different age groups when deciding whether a minor is liable for causing injuries to another person. Very young children are generally not held liable for accidental injuries they cause. They are too young to understand that they have been careless. This doesn’t mean, however that parents or legal guardians might not be liable for their negligence in failing to control a child. Once a child is old enough to know right from wrong, the child can be held responsible for intentional injuries he or she causes. Thus, if a child intentionally injures another child, for example or intentionally throws a rock at a car & causes an accident, the child who commits the intentional act & the child’s parents may be held liable. Older children are generally held liable for negligent conduct if they didn’t behave carefully as measured by what other children of the same age would understand is reasonably careful & once children become middle teenagers, they are held to pretty much the same standard as adults. When driving a care, a minor is held to exactly the same standards as adults. Children don’t normally have much money of their own, but if a minor can be held legally responsible there are several ways for a person injured by the minor to collect compensation. First, the actions of minors are very often covered by insurance. If a minor is driving a car, insurance or the insurance of the car owner should cover the accident. If the accident doesn’t involve a vehicle, a homeowner’s or renter’s insurance policy may cover the conduct of a minor who lives in the home. So the injured person may be able to deal directly with the parent’s insurance company. If you are seriously injured in an accident caused by a minor & there is no insurance covering the minor’s conduct, it may be worth pursuing a lawsuit against the minor. If you obtain a legal judgment from a court stating how much the minor owes, the minor will have to pay it upon coming of age 18years old in most states & starting to earn money. Because this process can be long & cumbersome & is usually worth pursuing only in cases of serious injury, however, it probably requires the assistance of an attorney.

Your Own Health Coverage & Accident Claims

                 Normally, when you are ill or injured, you look to your own health coverage through health insurance or a health maintenance organization, Medicare or Medicaid to take care or your medical bills. When you have been injured in an accident, however, you may also eventually receive compensation from another person’s insurance company or from your own vehicle insurance company if you had an accident with an uninsured motorist.

                If you do receive compensation for your injuries but your medical bills have already been paid through your health coverage. You may be obligated to repay some or the entire amount to the health plan. Whether & how much you have to repay varies with the type of plan & is determined by the terms of your policy or membership agreement with the health plan & by how the plan enforces those terms. Many health plans pay no attention to whether accident insurance compensates you for the same injuries that the health plan covers, & you get to keep your whole settlement. Other health plans, however specify that you must reimburse them out of any accident insurance award you receive.

                Following an auto accident you may have the option to pay medical bills through either your health the  option to pay medical bills through either your health plan or through the medical payments provision of your auto insurance policy. As discussed of your health plan or your vehicle insurance medical payments coverage requires you to reimburse it fully if you collect later from another source. If one requires reimbursement & the other doesn’t, you are usually better off using the one you don’t have to repay.

                Health Coverage with Insurance Company

                Whether you must reimburse your private health insurance company depends on the terms of your health insurance policy. Read your policy to see if there is a section entitled “Right to Reimbursement”. If so, & if the policy states that a right to reimbursement applies to third party claims, then the insurance company has a right to ask you to repay it any amount that it paid related to your injuries from the accident.

                Even if a health insurance company has a right under the policy to seek reimbursement from you, whether it actually does so depends on whether it knows you have filed an accident claim, it may ask whether the injuries were the results of an accident. It may ask whether or not you have filed a claim for damages against the liable party. But if your claim form doesn’t pose such questions, the insurance company may have no idea that you have filed & settled a claim for damages. Even if the company does file a request for reimbursement, you don’t necessarily have to repay the full amount it claims.

When You Might Need a Lawyer

             Sometimes, the skills of an experienced personal injury lawyer, or at least the threat that such a lawyer presents to an insurance company, are worth the money you have to pay that lawyer to represent you. You may need a lawyer because your injuries are so serious that the potential amount of your compensation might vary greatly, or because an insurance company refuses to settle the matter with you in good faith.

               

*Hiring a lawyer later in the process

If, after you have presented your claim & negotiated with an insurance company, you don’t feel the insurer is offering a fair settlement, you can retain an attorney to finish the process for you or you may be able to consult an attorney on an hourly basis to see if he or she can spot a particular legal argument that might help you to move the insurance company toward a more reasonable offer.

There are no hard fast rules about when you do & don’t need to hire a lawyer. Much of the decision has to do with how you feel things are going as you attempt to settle your claim on your own. At some point, you may feel overwhelmed by too much work, or by some obscure legal rule the insurance company decides to throw at your you may be stonewalled by an insurance adjuster who blusters that the company doesn’t have to honor your claim at all, or who offers you only a piddling amount to settle it. In these situations, you may want to consult an attorney for advice, & perhaps have him or her take over handling the claim. There are a few types of injuries & accidents that almost certainly require that you hire a lawyer.  

Injuries Caused by Animals

               Pets most commonly, dogs cause injuries in a variety of ways, biting, clawing, jumping & knocking people down, running & barking at people & making them lose their balance running into the street & causing vehicle accidents. A few states have laws making dog owners liable for any injuries their dogs cause away from the dog only if the owner knew or should have known that the dog was likely to cause the type of injury that occurred. A dog owner is usually covered by home owner’s or renter’s insurance for injuries caused by the dog & business owner is covered by business liability insurance for any injury caused by animal kept on the premises by the owner or any employee.

                In a claim for injuries caused by a dog, you & the insurance company will discuss whether the dog owner knew or should have known of a danger presented by the dog. The answer usually lies with the dogs’ past behavior. If the injury is a bite, & you can find any evidence that without provocation the dog had bitten, snapped, or lunged at anyone before, then you have gone a long way toward establishing a good claim. If the dog is of a “fighting breed”, you may be able to recover compensation even though you can’t prove any prior incidents of actual biting or snapping at humans. If your injury was caused by a dog jumping up & knocking you over, evidence that the dog frequently jumps up is enough, whether or not anyone has been knocked down before. If the dog is large, that too should make the owner aware of the danger, especially to small or unsteady people & if an accident was caused by an animal running into street, the fact that it has run out into the street before but the owner still lets the animal loose is good evidence of liability by the owner. Accidents also occur when vehicles run into farm or ranch animals that have wandered onto a road. Generally, an owner is liable for accidents caused by an animal that stays beyond the confines of the farm or ranch property.

              However, if the animal is being herded along or across a road that has signs warning that animals are lawfully present, it may be the driver who is responsible for an accident. If the animal is part of a working farm or ranch, the owner’s business liability insurance will deal with the accident. If the animal is not part of a business, then the property owner’s home insurance should handle the claim.