I recently resolved a case at mediation, very satisfactorily in my opinion. The case concerned a client who sustained a bad elbow injury as a result of a fall on an outside stairway leading from a side exit. The client was working as a security guard at the time of the fall. I think it is instructive to bring up the three arguments that I had to overcome -all presented for the first time at the mediation- to obtain the favorable recovery. The case was on for trial in a matter of weeks had we not settled it at the mediation. The three arguments that the defendant/insurance company put forth were:
First, this security guard had been up and down those same stairs thousands of times; this was part of his regular patrol. The rationale was as follows: if he did not fall at all in those prior 1,000 times, the reason he fell in this instance was that he was rushing and just not looking out as carefully as he did the other 1,000 times. (The 1,000 is just an estimate, of course, which they came up with by extrapolating from his shifts.) That is a very interesting kind of argument and it is an argument that is really allowed only in the discretion of the trial judge. Certainly this type of argument has to be anticipated by your lawyer in a premises liability case. To put it again, very succinctly, the client or other people had been up and down without having had an accident on that same piece of the property so therefore the client had to be negligent, contributorily or comparatively negligent, to have fallen. That is argument number one that has to be confronted.
Argument No. 2 is a strong argument and that pertains to an act of God. In the particular time that my client fell it was raining outside. An act of God is of course nothing that can be prevented. Therefore, when available to a defendant, it is an argument that will made at trial, at mediation, or at settlement negotiations. If it was raining and it led to a slippery stairway, what could we do, they say? These are the elements that are out there and they cannot be guarded against. In reply, you can certainly make the argument that there should have been a canopy or an awning but you are therefore still in the realm of what the defendant wants, which is that you are facing an act of God.
The third point that came up in this case concerned the co-workers, the two other security guards, who were walking with my client and in fact going down the stairs ahead of him. How is it that they walked down that stairway when it was raining and yet they did not fall? That is a hard piece of evidence to keep out of a trial. It is a little different than the 1,000 times that the client had been up and down those stairs. Frankly, I feel that it is a harder piece of evidence to keep out and it is surely one that you will hear. How come within five seconds of the client’s falling, so the argument goes, did Mr. A and Mr. B go down those same stairs and did not fall? I guess the argument has some seductivity because rest assured had they fallen, I would endeavor to make an issue of that. It is admissible evidence, it seems to me, from each perspective: that is, an accident of a co-worker occurring at the same time or a non-accident at the same time.
Those are three arguments you will regularly see and obviously they all have different configurations and different twists and turns to them. Always consider the facts available to the other side. In this case, I have presented three very typical arguments that we face in what is known as premises liability cases, cases where there are accidents on a property.
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