Monday, February 7, 2011

Light vs. Dark

I had an interesting email exchange earlier today with a business associate who happens to be the managing attorney of a law firm I deal with almost daily. One of the attorneys in the firm and I are in the process of negotiating a disputed liability claim involving a slip/trip and fall in a parking lot. I won't bore you with all the gory details, but the basics for establishing liability in a case like this is that the plaintiff must prove that: 1) an unreasonably dangerous condition or premises defect existed on the defendant's property, 2) that the dangerous condition or premises defect was the proximate cause of the alleged incident, 3) that the defendant had actual or constructive notice of said condition or defect, and 4) that the defendant failed to take steps to remedy the condition or defect or otherwise protect the public from harm. There are other nuances that come in to play; however, those are the basics.

Historically, slip/trip and fall cases are very difficult for plaintiffs to prosecute and win here in Texas. Part of the reason is the high incidence of fraud in this type of case. Part of it has to do with the general "stuff happens" mentality. Pretty much everyone has fallen on their butt at one time or another. Most folks get up, dust off their pants and sheepishly look around to see if anyone is laughing at them. These people might or might not bow to the applause. However, some folks actually hurt themselves in the process.

Anywho, the plaintiff in this case allegedly tripped and fell after stepping on a 1 inch wide expansion crack in the parking lot concrete. The same kind of expansion crack you see in just about every parking lot in the country. The crack was even filled with that rubbery caulk material you frequently see used as sealant or gap filler.

The policy of insurance my insured purchased includes what's known as Med Pay coverage (short for Medical Payments) which is a no fault coverage that provides payment of up to $10,000 in medical expenses incurred arising from an injury on the insured's property. There are a few caveats and exclusions none of which applied in this case. So, the plaintiff's attorney provided us with documentation regarding her medical expenses, and we promptly paid the $10,000 coverage limit.

But that's not enough for the plaintiff. She and her attorney wanted more. A whole lot more.

Let's go back to the required elements to prove liability for a moment. Was there an unreasonably dangerous condition or premises defect? No. Not hardly. A one inch expansion crack is not only NOT a premises defect, it's a purpose designed part of the parking lot structure. It's supposed to be there. The corollary to that is how can something that is designed to be there and present in a significant percentage of all parking lot structures be considered an unreasonably dangerous condition? Thank you ladies and gentlemen of the jury, it can't.

Since we don't get past the first element, I'm not going to spend anytime on the other three. Here's a hint though: the plaintiff can't prove them either. However, I do want to address the topic of contributory negligence here for a moment. Contributory negligence (or "comp neg") is the concept that the jury can assess the PLAINTIFF a percentage of the responsibility for the accident. In Texas, if a plaintiff is 51% or more negligent, they cannot recover damages for their claims.

One of the main defenses defendants have in premises liability cases is called "open and obvious". In other words, the condition that allegedly caused the accident was so clearly obvious and not hidden that any reasonable and prudent person would have/could have seen it and avoided it. It's related to the "last clear chance" doctrine which may or may not be applicable in any given state.

Anyway, you as a member of the occasionally pedestrian public have a duty to WATCH WHERE YOU ARE GOING. As it applies in particular to this case, the plaintiff had a duty to watch and make sure she wasn't going to stick her cute little heels in an expansion crack and fall on her butt.

So, after all is said and done, I evaluate the case and come up with a figure that I believe is fair and reasonable given all the quirks of this particular case including credits for the amount already paid under the Med Pay coverage, comp neg, the likelihood that a jury "pours out the plaintiff" (i.e. a finding of 51% or more negligence on the plaintiff or no negligence as to either party), etc. That number is a small number. The plaintiff's attorney, knowing full well the problems he has with his client's case, has been trying to get us to pay 10 times the amount I am willing to pay.

My defense attorney and his boss, the business associate with whom I exchanged email mentioned in the first paragraph, had a discussion about the proper method of applying the credits and percentages (I'm right, and they are wrong by the way) which makes a $6000 difference in the final offer number; and I, in an effort to be reasonable, agreed to allow defense counsel to approach plaintiff's counsel with the higher number as a "soft number" with the message that we would offer it if they would take it.

Plaintiff's counsel first tried to extort us for an additional $12,000. We told him to start preparing for trial. Now he's just trying to extort us for an additional $2000 (or $8000 more than my original evaluation). This led to the following email exchanged referenced above:

Me to Defense Counsel: "Our official authority is the $X previously offered. I agreed to extend the "soft number" $Y offer as a concession if and only if it would settle given the uncertainty regarding the method of applying the med pay offset and comp neg assessment. $Z is not happening."
Managing Attorney to Me: "Yeah, so tell [plaintiff's counsel] to put that in his pipe and smoke it."
Me to Managing Attorney: "I'd rather tell him to print it out, fold into a bunch of tiny sharp corners and use it as an origami suppository"
Managing Attorney to Me: "Dude that's dark"
Me to Managing Attorney: "Naw, that's just dimly light. You want dark...I'll give you dark."
 What do you all think? Do I need to shed a little more light on it?


  1. Can't read the emails; it's black on black.

    I do have a question, though? Is she going to sue the manufacturer of her cell phone, too? 'Cause she was probably texting and walking (a feat I've yet to master) which caused her to not see the expansion gap. Certainly the phone maker is liable too.

    And, yes, I'm being sarcastic.

  2. GunDiva, try it now. Not sure why blogger did things that way, but it looks correct now.

    Your sarcasm is duly noted and appreciated. I've seen plenty of stupid arguments in this business including from people who should know better, but I don't think I've seen anyone sue a cellphone manufacturer for injuries incurred while texting and being stupid.

  3. I'm just sayin' the cell phone dudes are just as liable as the cement-laying/parking garage dudes.

  4. GunDiva, the cell phone peeps have to stay in line behind Starbucks 'cause you know she was knockin' back the last of her caramel macchiatto when she stuck her foot in someone's crack.

  5. I might be over-simplifying what you do, but that sounds a lot like horse trading, just using fancy words and someone else's money :-).

  6. Blue Steel, it's okay. You are more or less correct when it comes to the negotiations aspect of the job. Everyone's job can be distilled down to overly simple elements. At various times I've described what I do as being a professional janitor (as I clean up other peoples' messes) or playing a combination of chess and poker.


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