When does an accident on someone else’s property become an injury that you can (and should) sue for? Answering that question is a big part of the job for personal injury lawyers like Rya Nelson.
“Like a lot of personal injury cases, the liability often stems from either negligence or intentional conduct,” said Nelson, an associate attorney at Oakland-based Gwilliam Ivary Chiosso Cavalli & Brewer. “A landowner owes a duty to keep any property – residential or commercial – in a reasonably safe condition. Neglecting that duty can have serious consequences.”
The legal doctrine that property owners can be held liable for injuries on their property due to their own negligence is known as “premises liability.” The landowner’s specific duties vary from state to state, but in California, landowners owe individuals the duty of regular inspections, timely fixes of hazards, and adequate warnings about any known or reasonably known unsafe conditions on the property.
As with any personal injury suit, there must be harm caused by the landowner resulting in damages. The measurable, out-of-pocket financial losses caused by the owner’s negligence, such as medical bills and lost wages, are known as economic damages. But injured parties can also seek non-economic damages for emotional distress.
Rya Nelson is an attorney with Oakland firm Gwilliam Ivary Chiosso Cavalli & Brewer. Courtesy of GICCB
“The emotional element isn’t easy to quantify but can be massive,” said Nelson. “Usually a jury will be tasked with deciding how much they think this person breaking their leg affected their life. Maybe they’re a soccer player who dreamed of going pro. Or a child who didn’t get to turn 18. Or an employee who can no longer walk to work, or walk at all.”
A “slip and fall” case — slipping on a wet floor in a grocery store and breaking your hip, say, or tripping over torn carpeting in a hotel and fracturing your wrist — is a common type of premises liability case. But the full list of injuries that owners can be held liable for is expansive. Dog bites, falling merchandise, injuries in places with inadequate security, swimming pool accidents, elevator malfunctions — are examples of injuries that could result in a legitimate premises liability claim.
The most tragic premises liability cases are those involving wrongful death. One of Gwilliam’s current cases involves a 12-year-old car passenger who was killed when a BNSF freight train struck him and his sister on a railroad crossing after she got stuck in bumper-to-bumper traffic on tracks where there was no arm to block cars. BNSF was aware for decades of cars getting trapped on the tracks.
“It is our position that BNSF is liable for its failure to address a known, dangerous condition at its crossing decades before the collision occurred,” Nelson said.
“It’s a particularly devastating and shocking case where a family lost their minor child and will never get to see him graduate from school and never get to see him grow up. The train collision that killed him was entirely preventable.”
Because premises liability is a civil matter, the burden of proof is “a preponderance of evidence,” which is a lower standard than “beyond a reasonable doubt.” Still, a successful premises liability lawsuit will usually have robust documentation.
“You should definitely go to a doctor and take care of yourself first,” said Nelson. “That also starts the record trail, which is critical. But it’s never too soon to seek out counsel, either.”
Gwilliam is a full contingency law firm, meaning it doesn’t accept any money up front. Consultations are free and, with few exceptions, bound by attorney-client privilege. Every intake gets reviewed by one of Gwilliam’s licensed attorneys.
“When we take a case, we can help obtain all the proper evidence needed to properly pursue a client’s lawsuit,” she said. “We’ve hired investigators to secure video footage and other records related to the incident when it was less easily obtainable.”
While all premises liability cases share certain similarities, Nelson never forgets that at the heart of each case is an individual whose life has been affected.
“It’s a firm value to lead with empathy,” said Nelson. “Our goal is to make you whole, and we believe compassionate legal representation that recognizes the wrongs done to you can be part of that process.”
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