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Commonsense View of Fault in a Fall Down Case


As you are aware by now, many of my blogs have dealt with the concept of landowner liability. Maybe that’s just a fancy way of referring to an owner of property. For example, many such personal injury cases involve a commercial establishment which has a duty to maintain its property, inside and out, in a reasonably safe manner. From my experience, I would have to say that one very helpful factor, one that has come up a lot in recent cases, is if the condition that causes the accident has been a long standing condition. It is the opposite of a transitory condition, a concept in the law that deals with conditions that are present only for a short time.

What is a transitory condition? A common example of a transitory condition would be if a person slips because of water, and the water has just briefly been present on the scene. In contrast, something that is shown to be a condition on the property that existed for more than a short duration, suggests by its nature that the object that gave rise to the accident had been there for a longer period of time. Obviously, as a matter of common sense, and the law tries to track common sense, it is more helpful for the plaintiff to sue if the condition had been there for a while, because then it would be or should be known to the people in control of the property. If the condition in question, the one that caused the accident, has only been on the scene very briefly then the property owner has less of an opportunity to fix the problem. Thus, it is harder to contend that they failed in their duty of reasonable care of their property. After all, maybe they didn’t notice it and maybe it was very difficult to have noticed it. Conversely, if it is not transitory but a longstanding problem, what constitutes reasonable care for the landowner is more onerous: they should have been attentive enough to fix a longstanding problem on their property, so the argument goes, such that the injured party would not have encountered the hazardous condition.

Anytime you have a fall or injury occurring on a property one of the first things you want to ask is what gave rise to the fall and how long had this factor/condition been present? Again, if you represent a plaintiff you don’t want a quick temporary, transitory condition. That is the beginning, not the end of the inquiry though.

A number of other things come up in the course of these cases. For example in a stairway case, was there a handrail? What are the size of the risers in the treads? Are they uniform or within acceptable deviations or was it too wide a deviation? Did a person fall over a single step? Some people will tell you a single step is inherently dangerous. Of course what also always comes up in these cases of landowner liability is lighting. Was the area illuminated enough? Was it sufficiently lit for the person to see what caused their fall? The experts will call it candlepower. Did the area in question have natural light from a window? Was the light switch accessible? Were the lights in good working order? These are commonsensical questions but they count toward the whole calculation of whether reasonable care was provided by the landowner.

Yes, at the beginning of this blog, I spoke of the significance of something being around for awhile, being present for longer than a brief period. A plaintiff does not want to face a situation where what gave rise to the accident was of a transitory, fleeting nature. It is much better to have the former than the latter.

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