Are Property Owners Liable To Trespassers?

What happens if you are trespassing on someone else’s land and are injured? Do you have a case?

Everything depends on the facts of your particular case. That’s why it’s important to have competent counsel in your corner. We are experienced personal injury attorneys. We practice in Oregon and we provide free consultations to assist you.

In law, actions concerning injury to persons are called “personal injury” cases. Personal injury cases that occur because of the negligence of a land owner or premises occupier are commonly called “premises liability” cases.

Let’s take a closer look at Premises Liability and whether it protects trespassers.

What is Premises Liability?

First, premises liability is the general rule that says that all property owners have a duty to maintain their land to a certain standard. The rule exists to protect people who come onto another’s property. The law tries to protect people from unnecessary injury. It applies to private as well as public properties.

But does it apply to trespassers?

Let’s see.

Who Does The Law Protect?

To decide when and to what extent a property owner is responsible for injuries that occur to people who enter onto the owner’s property, the law divides people into different classes. They are:

  • Licensee —someone who is present for his own purposes, but enters with permission of the owner.
  • Social guest—is someone that is a guest, present with the owner’s permission.
  • Business Invitee— customers, or others who enter the property at the invitation, and for the benefit of the owner. This invitation usually implies that the property owner has taken reasonable steps to make the property safe.
  • Trespasser— someone who enters the premises without permission and has no right to be on the property.

Does Premises Liability Protect Trespassers?

Generally, no. A trespasser is someone who enters onto property without the right to be there. If you do not have permission to be on the property, you are trespassing.

Property owners do not have a legal duty to protect trespassers from injury by exercising reasonable care to either keep the premises in reasonably safe condition or to carry out activities so as not to endanger trespassers.

On the other hand, you can’t go setting booby traps or make other efforts to actively injure a trespasser. Further, if the property owner knows people are trespassing on his property, the owner could be held liable if a trespasser seriously injures himself or herself if the property owner created conditions that were dangerous but hid them.

Consult With an Attorney.

Personal injury cases are never cut-and-dried. If someone has been injured on your property, or if you or someone you love has been injured, you should consider talking with an attorney. We provide free consultations and we have offices throughout Oregon and in Washington. Visit our website or call us toll free at: 1-800-682.9568.

Proving Liability in a Slip and Fall Case

 

Life is unpredictable. One minute you’re picking through the vegetables at Sherm’s Thunderbird in Klamath Falls, and the next minute you’re flat on your back, under a pile of tomatoes, staring up at the ceiling.

A slip and fall can happen anywhere. And when it does, you need to know a few things.

What Caused It.

As we said, a slip and fall can occur anywhere, at any time. Sometimes people just trip over their own feet. But at other times, there is a condition on the property (water, a banana peel, snow, ice, etc.) that caused or contributed to it.

While property owners have a duty to keep their property in good repair so that others do not get hurt, not every condition will make the property owner liable for injuries sustained on the premises due to a slip and fall.  Generally, the owner’s liability will depend on whether or not he or she knew of the dangerous condition, took appropriate actions to maintain the property in a safe condition, or to warn people of potential dangers.  

Proving Liability for a Slip and Fall.

A “slip-and-fall” is a type of personal injury case. Slip and fall cases generally come under the broader category of “premises liability” actions.

In the world of personal injury actions, slip and fall cases can be some of the most difficult to prove.

Why?

Because there is a tension in the law when it comes to premises liability. While a property owner has a duty to keep the property in a reasonably safe condition, those entering on another’s property have their own duties as well. Each person assumes normal risks and every person is expected to be aware of, and avoid, dangerous conditions. A dangerous condition is one which presents an unreasonable risk to the person entering the property, and it must be one which the injured person could not have anticipated.

In a slip and fall case like the one we pose above, to prevail at trial, you must prove that the property owner knew a dangerous condition existed and that:

  • The owner (or possessor)  knew the condition existed yet negligently failed to correct it or warn guests about it; or
  • The condition existed for so long that the owner (or possessor) should have known about it and corrected it before the accident occurred.

For a property owner or possessor to be held liable, it must have been foreseeable that his negligence would create the danger at issue.

Many factors go into proving a slip and fall case.

Don’t Go It Alone!

If you or someone you love has been injured in a slip and fall case, we can advise you as to your case. We provide free consultations and we have offices in Klamath Falls, Salem, Albany, Bend, Tigard and a number of other cities in Oregon. We also have offices in Vancouver and Tri-Cities in Washington. Contact us toll free at: 1-800-682.9568

Don’t Forget to Get a Police Report

Car accidents happen every day. But somehow, you are never expecting to be in one.

If you are involved in a car accident, it can leave you not only injured, but emotionally and mentally shattered as well. That’s why it’s important to know how to handle a car accident long before one happens.

Let’s take a look at what you can do to prepare for the unexpected.

Be Prepared.

One of the best things you can do to prepare for an accident is to have a first aid kit in your car and carry safety cones and lights in your trunk.

Another is to make sure your phone is fully charged at all times.

Being organized also helps. Keep important papers, like your insurance card, where you can easily get to them. And keep a pad and pen available that you can use to take down names of witnesses and other information in the event of an accident.  Take pictures of the other driver’s car, license plate, and any documents he or she gives you at the scene.

Get Medical Attention.

Your first point of concern after a car accident is your well-being and that of your passengers. If you or one of your passengers is injured, your immediate concern is to get medical attention. Call 911 or ask someone else to. If you are seriously injured, don’t move until the medics arrive.

Get a Police Report.

Whether the accident is major or just a fender-bender, it is important to get a police report. After an accident, call the police. When the police arrive, ask that a police report be filled out, and be sure to get the names and badge numbers of the officers who respond.

It is very important to remember to get a police report. If you need to bring a personal injury action, having the police report can be critical to your case.

Exchange Information.

Assuming you are not seriously injured, be sure to exchange information with the other driver. Get the names, numbers, addresses, drivers’ license numbers, license plate numbers, and basic insurance information from all drivers involved. If there are passengers, get their names numbers and addresses also.

A few cautions here: don’t argue with the other driver, don’t admit fault, and don’t talk too much.

Why?

Because you just might be admitting legal liability. Until an accident is fully investigated, you really don’t know whose fault it is. So stay calm and keep quiet.

Take Photos.

Again, assuming you are not injured (and assuming you moved to a safe spot), if possible, take pictures of the scene and the damage to your car. Pictures can help your insurance adjuster determine how much you should be compensated for the damage to your car and can serve as evidence if you have to bring a lawsuit.

Finally…

Consider Hiring An Attorney.

When you are injured in a car accident, find out whether you should file a lawsuit. We provide free consultations. We have offices in Tigard, Salem, Albany, Grants Pass, Klamath Falls, Bend, and several other cities in Oregon. We also have offices in Vancouver and Tri-Cities in Washington. We offer free consultations and we can help you. To set up an appointment, call us toll free at: 1-800-682.9568.

Premises Liability on Public Property

 

Here in Oregon we love spending time outdoors: crabbing on the Oregon coast, hunting  and backpacking in the Oregon Wilderness, snowboarding, sea kayaking— we love it all. But what happens when there is an accident on public land? If you fall down a ravine while hiking, or break a leg snowboarding, do you have to bear the costs alone?

Premises Liability.

The general rule is that all property owners have a duty to maintain their property in a reasonably safe condition so that people entering on the property will not get hurt. The legal theory for this rule is called “premises liability.” Premises liability makes property owners responsible for accidents and injuries that occur on their premises.

It applies to private as well as public properties.

When it comes to determining when, and to what extent, a property owner is responsible for injuries that occurred on his property, the law divides the people entering on the property into different classes:

  • Licensee —someone who is present for his own purposes, but enters with permission of the owner.
  • Social guest—is someone that is a guest, present with the owner’s permission.
  • Business Invitee—someone who enters the property at the invitation, and for the benefit of the owner— like a customer. This invitation usually implies that the owner has taken reasonable steps to make the property safe.
  • Trespasser— someone who enters the premises without permission and has no right to be on the property.

A property owner’s liability for injuries is determined by the laws and procedures of the state in which the injury occurred. Some states look only at the status of the injured person (social guest, licensee etc.) to decide liability. Other states look at the injured person’s status, his actions on the property, the condition of the property, and the owner’s actions. Knowing what factors the court in your state will apply is why it is important for you to consult with knowledgeable personal injury attorneys.

Oregon’s Recreational Use Statute.

In 1995, Oregon enacted its recreational use statute, which encourages landowners to make their land available to the public for recreational purposes. Oregon’s recreational use statute provides that an owner of land who makes it available for recreational use is not liable for injuries occurring on the land to people making use of it for those specific recreational purposes. That immunity does not apply, however, if the landowner charged the injured party to use the land.

Public Lands.

When it comes to public lands, it may be difficult to hold the government responsible for injuries because most government agencies enjoy “government immunity.”

Consult Competent Counsel.

If injury has put the skids on your outdoor activities, we may be able to help. We are Oregon attorneys. We provide free consultations. We have offices throughout Oregon and in Vancouver and Tri-Cities in Washington. To set up an appointment, call us toll free at: 1-800-682.9568 or contact us through our website.

Why You Should Know About Social Host Liability

It’s the morning after, and you’ve got…a horrible…

Lawsuit.

Social Host Laws.

Social host liability laws are laws that impose liability on social hosts for alcohol-related injuries that occur to minors, and in some states, to anyone who was allowed to drink to excess and who was injured or killed, or caused another’s injury or death. Social hosts are generally private individuals who serve alcohol in non-commercial settings.

Social host laws make a host liable for property damage related to these kinds of accidents. In most states, to be held liable, the social host must be aware that his guest was intoxicated and should not have been served more alcohol. These laws don’t just apply to alcohol – they can also include other intoxicating substances.

While many social host laws are aimed at reducing alcohol-related deaths and injuries suffered by or caused by minors, some states, like Oregon, have social host laws that apply to guests of all ages.

What Social Host Laws Mean to You.

Liability for personal injury cases generally encompasses economic and non-economic damages. Economic damages refer to money losses, like medical bills, car repair costs, lost wages, etc.

Noneconomic damages, however, refer to more intangible damages, like injury to reputation, mental distress, or humiliation. In the context of a personal injury action, “pain and suffering” generally refers to the noneconomic, mental or emotional damage you suffer as the result of an injury or accident.

While social host laws are limited to economic damages only, such money damages can still be significant. When you consider that Oregon  have social host laws that impose a duty of care of a party host to any guest, and then consider that most accidents caused by intoxicated adult guests are drunk driving incidents, the serious consequences of one’s duty becomes obvious.

Talk to a Lawyer!

It’s important that you know your legal duties as well as your rights. If you think you may be liable under the social host laws, or believe someone else is, talk to us. We are experienced attorneys with offices in Salem, Medford, Bend, Portland, Albany, Eugene Grants Pass, Klamath Falls, and several other cities in Oregon. We also have offices in Vancouver and Tri-Cities in Washington. You can call us toll free at: 1-800-682.9568.

What Damages Cap Means For Your Lawsuit

When you are injured by the negligence of someone else, you could end up with a mountain of medical bills, significant pain, suffering, property damage, emotional distress, lost wages or more. Generally, you (the plaintiff) file a lawsuit against the party that injured you (the defendant) to make him pay —both literally and figuratively— for the damage he caused you. You are usually looking for money damages to compensate you for the harm you have suffered.

Economic and Non-economic Damages.

Money damages come in two flavors: economic and non-economic. Economic damages refer to money losses, like medical bills, car repair costs, lost wages, etc.

Noneconomic damages, however, refer to more intangible damages, like injury to reputation, mental distress, or humiliation. In the context of a personal injury action, “pain and suffering” generally refers to the noneconomic, mental or emotional damage you suffer as the result of an injury or accident.

Not surprisingly, the costs of a serious accident, injury, or medical malpractice case or an incident where a death ensues, can skyrocket into the millions pretty quickly.

So, can a seriously injured person recover the full amount of her or his claim?

No, not in Oregon

Caps on Damages.

Damages caps are laws that limit the amount of non-economic damages that a plaintiff can recover. Each state has its own damages cap. To find out what the cap on non-economic damages are in the states of Oregon, consult with knowledgeable personal injury attorneys.

Damage caps are an issue of public policy.  I have personally seen how they can effect people with catastrophic and life changing injuries.

What a damages cap means to your lawsuit is that you may be limited in the amount of money you can recover for your pain and suffering or mental and emotional damages.

What do if you are facing a serious, catastrophic injury

Every case is different.  Developing a good legal strategy to deal with the caps and maximize your settlement is paramount. We offer free consultations, reasonable fees, and are committed to getting our clients the relief they need. To set up an appointment, call us toll free at: 1-800-682.9568 or contact us through our website.

Plaintiff’s Duty To Mitigate

Personal injury cases can get complicated pretty quick. Not only do they involve a lot of factors that can be difficult to prove —like a defendant’s duty, breach, causation and damages—but even when those hurdles have been met, a plaintiff, has obligations of his (or her) own that must be met. Even an innocent plaintiff who has been injured by someone else’s negligence must mitigate—or reduce— as much as possible, his damages.

The Duty to Mitigate.

The “duty to mitigate” (or “mitigation”) refers to the legal concept that requires a plaintiff who has been injured to reduce the damage that has been inflicted on him.

What?

Does that mean that someone who has been injured through no fault of his own has a duty to reduce the damage the other person caused him to suffer?

Yes, it does.

Every plaintiff has the obligation to take reasonable steps to avoid further loss and to minimize the consequences of the injury. In the context of a personal injury case, that means, for example, that you (as a plaintiff) have an obligation to seek medical attention, undergo surgery if recommended, or to seek other employment or re-train if necessary, or undertake any other reasonable steps necessary to mitigate as much as possible, the damage that was caused to you.

Why?

Because if you do not, the rule of mitigation of damages allows the judge or jury to reduce your right to recover that portion of your damages which the judge or jury finds you could have reasonably avoided.

How the Duty to Mitigate Works

It may be easiest to understand the way the duty to mitigate works by looking at an example. Let’s say that you are in a car accident and you break your leg. If your doctor recommends surgery as the only way to repair the break, and says you must stay off the leg for 6 months, and you refuse to have surgery and don’t stay off the leg for 6 months, you cannot later claim damages for the conditions that resulted from your refusal to have surgery and stay off the leg. If a reasonably prudent person would have followed the doctor’s advice, your damages will be reduced by the amount your failure to follow the doctor’s advice resulted in a lack of improvement in your leg, or aggravation of the break.

We Are Personal Injury Attorneys.

If you have been injured, we can help. We are personal injury attorneys with offices throughout Oregon. We have offices in Salem, Medford, Bend, Portland, Eugene, Albany, Grants Pass, Klamath Falls, and several other cities in Oregon. We also have offices in Vancouver and Tri-Cities in Washington. You can call us toll free at: 1-800-682.9568.To set up an appointment, contact us here.

What is a Subrogation Action?

 

If you are in a car accident, “subrogation” is a term you need to become familiar with.

Why?

Because a subrogation action by your insurance company can impact your claim Subrogation is not a term that many people hear about. That’s because it is generally a matter that is between insurance companies.

So let’s see what it is and why it’s important.

What is Subrogation?

Subrogation is one of the ways in which car insurance companies recover money they have paid out in claims to drivers that they have insured.

Subrogation is the act of one party claiming legal rights of another that it has reimbursed for losses. Subrogation usually occurs in personal injury or casualty cases where one insurance company pays its insured damages and then brings its own claim against other parties or their insurance companies who caused or contributed to the loss, for reimbursement.

To make this clearer, let’s say you are in a car accident. Generally, you will submit a claim to your insurance company for the damages you incurred (medical bills, damage to your car) related to that accident. Your insurance company will conduct an investigation of the accident, and based on its conclusions, will reimburse you some amount for your damages. Let’s say that your insurance company determines that that accident was entirely the fault of the other driver, so it pays all of your expenses. Your insurance company will then seek reimbursement for what it paid to you from the other driver’s carrier. Your insurer is “subrogated” to the rights of your policy and can “step into your shoes,” which means that your insurance company can recover what it paid to you, its insured, from the other insurance carrier.

Why is Subrogation Important to You?

You may be wondering why subrogation is important to the consumer if it’s just a matter of reimbursement that occurs between insurance companies. There are two main reasons why understanding how subrogation works is important:

  1. If your insurance company decides to pursue subrogation to recover its costs, they are required to try to recover the costs of your deductible as part of their subrogation claim. If they recover the costs of your deductible, they are required to refund that money to you.
  2. If your insurance company is not able to recover the money it paid directly from the other company, it may have a lien on your settlement. There may be issues to attack the validity of the lien. If you find yourself in this situation, you should have legal counsel assisting you in the matter.
  3. While it is rare, a subrogation claims might possibly limit your ability to make agreements with third parties regarding liability. Your insurance policy will very likely require you to cooperate with any subrogation attempts they make. This means that you may not be allowed to sign waivers that release the other driver from responsibility.

To fully understand subrogation and how it impacts you, you should discuss it with a personal injury attorney.

Talk to an Attorney.

If you have been in an accident, consult a personal injury attorney about your rights. We have offices in Salem, Medford, Bend, Portland, Eugene Albany, Grants Pass, Klamath Falls, and several other cities in Oregon. We also have offices in Vancouver and Tri-Cities in Washington. You can call us toll free at: 1-800-682.9568.

Wrongful Death Suits; Texting and Driving

According to the National Highway Traffic Safety Administration  driving while talking or texting on the cell phone claimed the lives of 3,477 people in 2015 alone. A study conducted in 2012 found that 660,000 American drivers use their cell phones while driving. Thirty-eight of the fifty states and the District of Columbia have anti-texting laws. Many states are moving towards bringing criminal charges against drivers convicted of causing fatalities while texting and driving, including motor vehicle homicide and negligent operation of a motor vehicle.

Texting and Wrongful Death Lawsuits.

Texting while driving is not only distracting, it’s negligent. It has been said to be the equivalent of driving while intoxicated. In some states, if texting was a contributing factor in a fatal car accident, the victim’s family can file a wrongful death action.

Many wrongful death actions arise out of car accidents. Wrongful death actions are civil law litigations that allow a decedent’s representative to get money damages (for the estate) caused by the tort committed by the defendant – in this case, texting while driving.

And when it comes to texting and driving wrongful death actions, the damages awarded can be astronomical. Consider this case:

  • A Florida jury awarded $8.8 million to the family of a woman who was killed by a young male driver who was speeding and texting his girlfriend.

Even where the victim does not die, but is injured, the damage awards can be significant, as in these cases:

  • A jury awarded a 15-year-old car accident victim in Georgia, $1.5 million for injuries she received when a texting driver hit her mother’s car.
  • In Florida, a woman who suffered traumatic brain injury and was left permanently disabled due to a distracted driver accident, was awarded $4.3 million.

No amount of money will ever compensate these victims or their families for their loss, of course. Nevertheless, it is clear that juries do not hesitate to award hefty damages in texting and driving cases not only where death ensues but where people are injured as well.

Limitations on Who Can File a Wrongful Death Action.

A wrongful death claimant may be able to recover for  the loss of financial, household support he or she would have gotten had their loved one lived, as well as for the loss of love, companionship, moral support, affection, and consortium. However, not just anyone can file a wrongful death lawsuit. These actions are governed by statute. And each state has its own wrongful death statute. The only way to be certain whether you may be entitled to recover for the wrongful death of a loved one who was killed in a car accident due to texting and driving is to consult with competent counsel.

Don’t Text and Drive.

If you or someone you love has been killed or injured by a driver where texting and driving was or may have been a contributing factor to the accident, get in touch with us. We have offices in Salem, Medford, Bend, Portland, Eugene Albany, Grants Pass, Klamath Falls, and several other cities in Oregon. We also have offices in Vancouver and Tri-Cities in Washington. You can call us toll free at: 1-800-682.9568.

Toxic Torts and Personal Injury

Those of us who love the outdoors, fresh air, clean water, and pesticide-free fruits and vegetables, are usually very aware of the danger of exposure to toxins or dangerous chemicals. And so we may do a number of things to reduce our risk of exposure. But sometimes, we have no control over whether we are exposed to dangerous chemicals. For example, John Travolta’s 1999 movie, A Civil Action was based on the true story of 8 Woburn, Massachusetts families whose children and spouses contracted and died of leukemia after the local water was contaminated by  W.R. Grace Co. Similarly, the movie, Erin Brockovich told the story of a legal assistant’s discovery that Pacific Gas & Electric had been poisoning the water supply in the town of Hinkley, California for 40 years. And, although it was never made into a movie, the Exxon Valdez oil spill that occurred off the coast of Alaska in 1989, dumped about 11 million gallons of oil into the water and devastated fishing communities.

The people who were exposed to these man-made disasters were severely injured or died.

Toxic Tort Litigation.

With the exception of claims covered exclusively by worker’s compensation, people who are exposed to and injured by toxins can seek redress through litigation and can usually recover damages through a personal injury case. These types of personal injury actions are called “toxic torts.” A toxic tort is a legal claim for harm caused by exposure to a dangerous substance like pesticides, asbestos, pharmaceutical drugs, black mold, oil spills, groundwater contamination, or any number of things.

What Happens if You Didn’t Realize You Were Exposed to Toxins?

A common issue in many toxic tort cases is that the injury (often in the form of a disease) doesn’t show up right away. For example, someone may be exposed to pesticide drift due to crop spraying, and may develop cancer, but it might not show up until 10 years after the initial event took place. Because most personal injury cases must be brought within 2  or 3 years (depending on your state’s statute of limitations) someone who does not find out until years later that he was exposed to a toxin which caused his injury, would not be able to sue the responsible party. To prevent this unfair result, the courts have developed a “discovery” principle. This principle prevents a plaintiff’s time to sue from starting to run until the plaintiff knew or should have known of his injury.

Causation. The Battle Begins.

Because of the delay between the damaging event and the plaintiff’s injury, not surprisingly, the battleground in many toxic tort cases is the issue of “causation.” The toxic tort plaintiff has to prove that his injury or illness was caused by the specific chemical used, manufactured or distributed by the defendant (depending on whether plaintiff’s theory is one of negligence or product liability) and not from some other cause, like exposure to some other chemical or drug, or smoking cigarettes.

Like they say, “it’s complicated.” That’s why you need competent counsel to guide you if you have been exposed, or believe you have been exposed to toxic substances.

Toxic Tort Attorneys.

If you or someone you love has been exposed to toxic chemicals or injured by  pharmaceutical drugs, black mold  or other toxins, we are here for you. Our personal injury attorneys in Washington and Oregon offer free consultations. Contact us by phone or email  to  set up your free consultation.