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Mick Jagger: Paint it black; Personal Injury Lawyers: Paint it Yellow

In a personal injury claim brought as a result of a fall on property, such as in a parking lot, the courts will consider whether the defendant had failed to delineate the blocks [the plaintiff having fallen over an automobile bumper block] from the surface of the lot by use of contrasting color or other means of demarcation. Spring v. Foodmaster Super Market, Inc., 2 Mass.App.Ct. 808 ( 1974). Of course, whether there was sufficient lighting on the property also enters into the equation. As with anything, expert testimony can be presented to show that the bumper blocks were situated in a haphazard fashion, lacked demarcation by color, and that the premises provided insufficient lighting. Lay testimony is quite fine on the first two issues, but resort to an expert is helpful on the third as the data is quite scientific on “candle power.”

You have no doubt seen speed bumps on public ways and also in private complexes. Since becoming aware of the Spring case, I have been intrigued to see if those bumps or blocks have been painted yellow. When they are simply the same color as the surface of the driveway, I wonder if they are appropriately safe. I think not and I would point out that the burden of painting those to yellow is very minimal. You may recall reference to the Learned Hand formula, Hand having been a revered appellate judge. Judge Hand created the BPL: a trier-of-fact should assess the burden of undertaking a precaution by comparing it to the probability of the loss times the magnitude of the loss. I suggest that the BPL formula argues for negligence.

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