Friday, December 17, 2010

The Hazards of Winter Weather: What You Need to Know

During the snow and ice filled winter months ahead, here are some facts and suggestions to keep in mind.

Remember, just because you fall down or are injured does not mean that you are automatically entitled to monetary damages. The law in Illinois requires that you prove that the responsible party was negligent and a proximate cause of your injury. This is not that simple to prove in premises cases in general and even more challenging in fall down cases due to snow and ice.

Land /Store/ Property /Company owners in Illinois are generally not responsible for falls and injuries due to natural accumulations of snow and ice. However, they may be liable under certain circumstances.

Some of those circumstances may be seen when the premises owner by and through its agents or employees acts or omissions:

1. create or are responsible for the existence or condition of an unnatural accumulation of snow and /or ice which is a danger or hazard danger;
2. guarantee in landlord/tenant or condo association agreements that they will clean the snow and ice from the sidewalks and/or parking lots;
3. allow snow and ice to cover a crack or defect in the pavement which, if large enough, becomes a latent and slippery defect and therefore not open and obvious to the victim;
4. have broken/defective gutters that create an unnatural run off of water thereby creating an accumulation of water that freezes and creates a slippery and hazardous condition;
5. hire or are themselves snow and ice removal companies that contract and guarantee to keep the area clear of snow and ice;
6. fail to have sufficient artificial lighting over the area of the fall, such as in parking lots, over sidewalks, and adjacent to exterior doorways etc.;
7. fail to warn of underlying defects and fail to block off or barricade the area;
8. provide mats at the entrance of a store/property but the mats are in some way defective such as torn, old and frayed mats , or they are not firmly secured to the floor;
9. mop the snow, ice or water tracked in to the store but they allow large puddles of melted ice to remain on the floor thereby creating an unnatural condition;
10. fail to place wet floor signs when they knew or should have known that the unnatural condition was created by them and dangerous;
11. allows their parking lot to have broken or defective sewers that do not provide a proper run off of the water which freezes and becomes dangerous;
12. allows unlevel pavements/sidewalks or stairways to become dangerous when slippery from ice or snow;
13. building code violations such as lack of handrails, uneven stairs, improper riser heights, defective/rotten wooden stairs etc....can be a proximate cause of the fall along with the natural accumulations of snow and ice.

Store owners do not generally have a duty to remove snow, ice or water tracked into the store from the wet conditions outside, but the premises owner may be responsible for a dangerous condition if it was foreseeable that the injured person would be distracted and unable to appreciate the danger.

Part 2: Protecting Your Rights
There are important things that you should do and not do to protect your rights. Always try to: preserve the evidence; take photographs of cause of injury; immediately report the injury and document it in an accident report; obtain witness information; seek immediate medical care; It is advisable to not give a recorded statement to insurance company without first consulting an attorney.

For any fall down injury/premises liability case you need to know and document the exact location, date and time of the fall. It is important that the premises owner or manager is immediately made of aware of the incident so that their insurance company cannot claim it did not happen. Make sure that an accident report is actually filled out and ask for a copy. Oftentimes, the employee will not fill out the required forms, and later claim that it never happened and that you never reported it.

If injured, it is advisable to immediately seek medical care. It is preferable to be taken by ambulance from the place of the injury. The ambulance attendants will record the time and location and hopefully the cause of the injury. This will be evidence to prove how and when the fall happened. Always follow up with your family doctor if the pain persists. Medical documentation is also crucial evidence to prove your injury. Any delay in treatment will be used against you by the insurance companies to try to deny and defeat your rights.

Keep in mind, the burden is on the injured party to prove that the negligence of the property owner was a proximate cause of the injury. It need not be the only cause. This can be proven by evidence that they created the hazard or they had Notice that a hazard existed. Notice is proven by either Actual Notice or Constructive Notice . It’s not always easy to prove they actually knew about the defect or danger, but if one can show that they should have known that the danger existed for a long enough time, where they could have repaired the condition or warned the public, then a recovery for the injuries may be successful.

Example of Actual Notice:
1. Fall on a wet floor and there is mop and bucket nearby, but no warning signs. This could indicate that the wet condition was actually created by the store employees and they failed to warn or block off the area.

Examples of Constructive Notice:
1. Fall on a wet floor with evidence of water being dirty and several footprints through the water. This could indicate that the condition existed for a long enough period of time that the premises owner should have known of the danger and corrected it or warned about it.
In either situations, you may be able to prove the property owner was responsible for your injuries. It is crucial that you document the evidence immediately.

If the premises injury was caused directly by the Exclusive control of an instrumentality of the company the store owner may be responsible.

City municipalities generally have a duty to maintain its sidewalks, parkways and streets in a reasonably safe condition but are not liable for minor cracks or defects. However, if the defects are not minor and are covered by snow and ice and a fall results, they may be liable.

There is a limited amount of time to file a lawsuit for injuries. This is called the Statute of Limitations. In Illinois, it’s generally a two year statute, and only one year for municipalities. Minor’s time limit is extended to one/two years past 18 years old, but their parents recovery time for medical expenses is not extended.

It is always advisable to seek legal advice/representation about your rights and the law after an injury.