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Premises Liability

Katlyn Graham: Hello. I'm Katlyn Graham, here with Kristin Harris, an attorney at Brody Hardoon Perkins and Kesten in Boston, Massachusetts. Welcome, Kristin.

Kristin Harris: Hi. Thank you very much.

Katlyn: Thanks for joining us today. We're discussing premises liability.

You often focus on premise liability cases, we've brought you in here to explain some of the fundamentals. Just for people who might be unfamiliar, Kristin, what is premises liability?

Kristin: Premises liability is basically a type of negligence case that you would file when someone gets hurt on property that's owned by somebody else, either a person, or a company, or a business.

A lot of times, what they happen to be are slip‑and‑fall type of cases. That's what you see a lot, but really, there are other ways that people get injured on somebody else's property. That is the type of claim you would be filing, under the premises liability law.

Katlyn: Someone has been hurt in some way on someone else's property. What do you need to do to prepare a lawsuit in Boston?

Kristin: Typically, when someone gets hurt, a lot of times, their first thought isn't necessarily what do I need to do to file a lawsuit.

But it is important at the beginning in order to preserve some evidence, to preserve things that you may need later on. Keep some things in mind, protect yourself.

Often, what you want to do at the beginning is, if it's a condition that you've hurt yourself on, slip and fall on snow and ice happens a lot.

Something that may not be there the next day or the next week, you want to try to document that. If you can take pictures, or if you're very hurt, have someone take pictures for you, so that you can show exactly what it was that caused your injury.

Even if it's a defect, there's something wrong on a stair way, anything like that before it's changed, you would want to document it, you have that as evidence later on in the case. Also, if your own injuries, if you have bruising marks on yourself, a lot of times, you'd want to get photos of that, as well, because those things can heal, those things can fade.

You really want to be able to show the types of injuries that you sustained and how they serious they were. After that, obviously, you want to focus on your recovery and getting better. But then, when you're looking into filing the suit and hire an attorney, there are some things we're going to need to find out.

First of all, who owns the property. If you don't know the person or the company, there are ways to search records, public records through deeds and things to find out who owns the property. Might also lead you to a property manager, because you need to know who are the people that I need to go to that may be able to, I might be able to recover from from my injury.

Those are kinds of things in the beginning and then, obviously, as the case goes along, you're gathering your medical records. You want to just make sure everything's in line so that you have the evidence that you'll need to prove your case and your damages later on.

Katlyn: Documenting from the very beginning with pictures, medical records, organizing yourself. Once I've done that, how should I select a premises liability lawyer in Boston?

Kristin: That can certainly be difficult. There are a lot of attorneys that are out there. A lot of times what you'll find is that law firms specialize in certain areas, and not all law firms are going to do premise liability cases.

Obviously, those are not going to be firms you're going to want to go to because you don't want this to be their first time ever doing your kind of case. You want to look at firms that do that.

In addition, something that we do that's pretty rare is we handle these kinds of cases from both sides. We handle them from the plaintiff's side, and then we also handle them from the property owner's side. A lot of firms only do one or the other. When you're looking at a firm like ours, where we do both, something to keep in mind is that that really gives us better insight into the mind of the defense of the case.

If we're handling your case as a plaintiff in pursuing your case, we know how the defense attorney is going to think about your case because that's how we've thought before. We know how the insurance company that's handling it is going to look at your case because we've dealt with insurance companies. We really will know from the beginning what you're going to need as far as documentation and what you're going to need to prove to get the best result for you, in the case going forward.

When you're looking for attorneys, you really want to look for someone that does work, specializes, in the type of case that you're going to file. Then, again, someone that does both sides is really going to be able to give you the best perspective as far as how your case is going to proceed and then the best result.

Katlyn: Certainly, I'm sure you've all sorts of insight into the other side that would be helpful for plaintiffs. Kristin, what is a plaintiff's burden of proof or a slip and fall, in any premises liability case?

Kristin: Premises liability is a negligence case. Basically, what that means is there are four elements for any negligence case that you have to prove.

You have to prove that he owner of the property owes a duty to you as the plaintiff and, in the sense of premises liability cases, all property owners owe a duty of what's called reasonable care to anybody that's lawfully on their property. They have to act in a reasonable manner to maintain that property in a safe way so that people don't get hurt.

You have to prove that they acted unreasonably, in some way. That all depends on the facts of the case, whether they didn't remove snow or ice from their property, and that was unreasonable, whether there was a defective step on a staircase that caused you to fall, and that was unreasonable, those types of things.

The first element is to actually prove that they breached the duty that they owed. There's the duty to be reasonable, and then you have to prove that they breached that duty by being unreasonable in some way.

The third element is, then, damages. You were actually damaged because of their breach. The fourth element is close to damages. Basically, you have to prove not only that you were damaged, but that your damage was actually caused by their breach.

It wasn't something that would have happened anyway, it wasn't an injury that you already had, it was something that happened because they failed to keep their property safe in a reasonable way. If you can prove all four of those things, then, you're in a good shape.

Obviously, the other side, the defense side, is going to try to show that they acted reasonably. Your goal, throughout the case, is to find everything you can to show that they were unreasonable.

Katlyn: I could see how there would be varying opinions of what is reasonable and how that would need to be laid out in court...

Kristin: Exactly. That's what a jury ultimately decides, whether the owner was reasonable or unreasonable. You want to try tip the scale more in your favor to have them decide that they were unreasonable. The more evidence you can gather to show that the better.

Katlyn: I'm sure, and I've heard so many plaintiffs before ask, "How much is my slip and fall settlement worth? How much will I receive?" I know, also, the complexities of these cases. How do you do that?

Kristin: That's a question most people want to know, early on. It's a normal question. People are curious, "What do you think my case is worth? What do you think I'm going to get from a jury? Do you think we could settle this, and how much?"

Unfortunately, it's very difficult to come up with a figure, especially at a very first meeting with a new client because there are a lot of pieces that go into making that decision. There are many elements of damages that you prove when you have the case. There's, obviously, the physical injury itself. Did you break your arm or your leg? Did you strain your back? What did you do to your actual body? What treatment did you have for that?

How much medical treatment did you have to get? Did you have surgery? Did you have physical therapy, chiropractic treatment? That's an element. Then, how much was that treatment, the amount of your actual bills?

In addition to that, did you miss time from work or lost wages? Obviously, that's a major factor for people. People need to work, they need to pay their bills. Did you have a period of time where you were disabled, you couldn't leave your house, you couldn't do anything...that you've suffered through?

How long did that last for? Is it still something that's ongoing? Is there something that's going to be permanent, that's part of your injury, some time into the future? Those are all elements of damage. At least with those, there are hard figures that go along with it. Your medical bills have a number to them. Your wages have a number to them. These are all numbers that get placed in front of the defense attorney, and ultimately, to a jury.

The other side that's a little more vague is the emotional distress and pain and suffering side. There's no figure that you can put on that. That's where it gets difficult, because really, at a trial it is totally up to the jury to decide what your injury is worth.

You cannot, in Massachusetts, ask a jury to award a certain sum of money to a plaintiff. A jury has to figure it out on their own. That's why, at least in the very beginning, it's very difficult at a first meeting to say what your case is going to be worth.

The extent of liability of the defendant is another factor. How badly they were negligent can also affect the award. It is hard to figure that out. As the case moves forward, we're experienced staff to know what cases tend to settle for, what verdicts tend to come out for certain injuries a little later on. They only can try to start coming up with figures to see if we can settle a case.

That takes some time and some gathering of more information. We need to make sure that the person has recovered fully from their injury, because you wouldn't want to do anything until your injuries are fully recovered.

Katlyn: That really is the most important, to take care of yourself.

Kristin: Exactly, yes. People need to focus on their treatment, and make sure that they're getting the treatment that they need so that they can end their suffering, end whatever the treatment is going to be, and then focus on the case if they need to.

Katlyn: Thank you so much for explaining that, Kristin.

Kristin: Sure, anytime. I'm happy to be here.

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