How Is Causation Proven In A Premises Liability Claim?
Typically, causation in a premises liability case is proven by surveillance from the videos. There are so many cameras surveilling stores, homes, businesses than there ever were before. In the last ten years, video cameras have exploded in numbers, both in home and businesses. The first thing you do is observe to see if the premises have any video cameras. Then pursue the videotapes that those cameras have produced. Once you get the videotapes, you hope to prove that the person fell on the premises on the date in question. That is one part of the causation, and then the other part of the causation is getting medical providers to review the videotapes, and give an opinion that more probably than not, this particular fall or accident that is depicted on the videotape, caused the medical condition that the person is claiming as part of the premises liability case.
I believe there are two elements to causation, and one is proving factually that the person had a specific event and the nature of that event. Secondly, proving that the nature of that event, or accident is something that more probably than not, caused that specific injury. The second part of that is going to require medical opinion and testimony, or at the very least, a medical report from medical professionals with an opinion on causation.
Is Comparative Negligence Ever A Factor In Premises Liability Cases?
Comparative negligence is a huge factor in premises liability cases, because invariably it is the number one offense used by defense counsel, and their insurance companies to deny the claim as being their responsibility. It is used in slip, trips, and falls, or premises liability cases, because in many of those cases, the argued reason for the fall is the clumsiness or inattention of the accident victim, or the person making the claim. They often claim that the plaintiff did not wear proper footwear, or, did not have their glasses on, or did not wear the right clothing, all of which can contribute to certain kinds of accidents.
Therefore, the owner of the facility often claims comparative negligence of the injured individual, where they were injured. Typically, people while on these premises are walking, running, and they will try to claim that the plaintiff was more at fault than they were in whatever negligence the plaintiff can prove of the defendant. If they are successful in proving that the plaintiff accident victim was more at fault than the defendant property owner, by a percentage of fifty-one to forty-nine percent, or even if they just prove that they were equally at fault, then the property owner does not have to pay any damages for negligence in the accident.
What Damages Can Be Recovered In A Premises Liability Claim?
The typical damages available in a premises liability lawsuit, or claim are the medical bills that an individual incurs because of the incident. There is also lost wages for the time off work that they missed due to the injury, with pain and suffering caused by these accidents. There are many subsets of those types of damages. For example, the medical bills could also include the cost of getting to and from medical appointments, or the mileage is taken into account. Then there is the cost of hiring somebody to do something for you while you are recovering from injuries. For example, you may not be able to mow your lawn, so you have to hire somebody else to do these normal activities of daily living.
That is something that can be recovered in a premises liability case as damage. Another common damage subset of lost wages is future impairment of earning capacity. If you suffer a permanent injury that is so traumatic, you are unable to maintain the level of employment, the wage that you were earning at the time of the accident, and it is not likely that you are going to be able to continue in the same occupation, you will have lost earning capacity for the future. This can be claimed as damages in your premises liability claim or lawsuit. Pain and suffering include other types of economic loss, like mental anguish, which could be in the form of depression, and other forms of non-physical, or mental injury caused by the accident.
Some people after suffering a personal injury will fall into a depression, and that is something that can be awarded depending upon the level of impact that has on a person’s life. All of the damages that you typically prove in these types of cases have to be proven within a reasonable degree of medical probability as causation by the negligence that actually caused the accident. In Kansas, a cap of $30,000 limits the non-economic side, like the pain and suffering. The economic side of the damages is unlimited in its recovery, and as long as you can prove an economic loss is closely connected, or related to this accident, then you can make it part of your claim.
Another classic example I have witnessed is when a person has lost a business because of injuries, and they were forced to go out of business. That has a different calculation of damages. Economic loss damages can be made in the premises liability claim, or lawsuit.