| Read Time: 3 minutes | Personal Injury

Open and Obvious Defense in Trip and Fall Injury Cases

In a personal injury case, a defendant may attempt to use what is called the “open and obvious” rule as a defense. The “open and obvious” rule is an exception to premises liability law, which can be utilized as a defense by a property owner in order to explain why they should not be held liable for injuries that were a result of a fall on their property.   In order to determine whether the open and obvious rule will apply in a case is a question best assessed by an experienced attorney. Premises liability laws can be complicated and a lawyer who is familiar with these laws and limitations can ensure the best result. If you have been involved in a fall or accident, speak to an attorney at Silva Injury Law who can assess your case and represent your rights.   APPLICATION OF THE OPEN AND OBVIOUS RULE   Property owners have a responsibility to visitors on their property to keep the area safe and free of hazardous conditions. Often property owners are held liable when injury results from their failure to keep conditions safe or to warn of such conditions. The open and obvious rule, however, provides a defense for property owners when the injury results from a clearly dangerous condition. Essentially, visitors are expected to exercise their discretion when they are faced with an obvious and apparent danger.   The Court in California has explained that “Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or wan of the condition.” (Jacobs v. Coldwell Banker Residential Brokerage Company (2017) 14 Cal.App.5th 438.)   Generally, whether or not a dangerous condition is considered to be open and obvious is determined based on the standard of a “reasonable person.” This means that if a certain hazard would be apparent to a reasonable person in the same position, the rule may apply. The standard will be adjusted when the encounter between the injured party and the condition is unusual, such as the injured being of young age.   A defendant who seeks to use the open and obvious rule to show they did not owe a duty of care to the injured plaintiff must show that foreseeability and reasonableness support the application of the rule.     LEGAL PROCESS   The inquiry into whether or not a plaintiff will succeed in an injury claim, and whether a defendant’s open and obvious defense will succeed are fact intensive. Experts play a significant role in determining whether or not the condition was open and obvious, and whether or not the defendant had a duty to remedy the danger.   California Courts also may present the issue of whether a defect is open and obvious to the jury to determine. When this type of issue is presented to a jury, experts play a vital role.   WHEN IT IS NOT A COMPLETE DEFENSE   California Courts have established that the open and obvious rule is not a complete defense when “it is foreseeable that the danger may cause injury despite the fact that it is obvious.” (Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 122.) This most frequently applies when necessity requires a person to encounter the dangerous condition.   Additionally, even if a condition is considered open and obvious, this does not always bar recovery for damages.   CONTACT AN ATTORNEY   An attorney is in the best position to assist you in proving your case. If you have been injured on another’s property, speak with an attorney at Silva Injury Law who can protect your rights.

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| Read Time: 2 minutes | Personal Injury

Trivial Defect Defense in Trip and Fall Injury Case

It is unfortunately common for trip and fall incidents to cause serious and lasting injuries. When the tripping and falling has occurred on someone’s property, and it results in injury, there is a potential premises liability case. In the process of determining liability, the court may apply what is called the “trivial defect” doctrine.   If you have been involved in a trip-and-fall incident and were injured, reach out to an attorney at Silva Injury Law who can best navigate your case to ensure you are compensated fairly for your injuries and suffering.   THE TRIVIAL DEFECT DOCTRINE   Before an injured party can recover for their injuries in a trip and fall case, they must prove that the defendant, often the owner of the property, maintained dangerous conditions on the property, and that the owner either knew or should have known about the dangerous condition. Additionally, the injured party must prove that the condition which caused the fall was not considered a “trivial defect.”   A “trivial defect” in California is generally understood to be when the change in elevation of a walkway is of 3/4 of an inch or less. However, some courts in California have held that a change in elevation of 1.5 inches or less is trivial. What this means in a trip and fall case is that if you trip and fall over a raised portion of a walkway which is less than 1.5 inches, your claim may be discarded. Even if your injuries from falling were severe, a judge may be able to throw out the case completely based on this rule. Despite this, however, there are exceptions to this general rule which may allow a claim to prevail despite the trivial defect doctrine.   EXCEPTIONS TO THE TRIVIAL DEFECT DOCTRINE   The trivial defect doctrine is a fact-based test, meaning the court will determine whether it applies on a case-by-case basis. In cases where the area is well-lit, and you are familiar with the area, and there was nothing liming you from seeing the potential trip hazard, the court will most likely assign blame to you.   However, if it was dark, the lighting was inadequate, you were not familiar with the area, if poor weather conditions or some type of debris concealed the danger, then you can possibly overcome the trivial defect argument. If the court, in looking at all of the facts and circumstances surrounding the fall, determines there were sufficient reasons you were not able to see and avoid the condition, you will be allowed to further pursue the case.   HOW A LAWYER CAN HELP IN A TRIP AND FALL CASE   In order to win a case and receive fair compensation for the injures obtained due to a trip and fall, it is best to speak to a qualified attorney. An attorney can help determine if the factors in your case are sufficient to prove that the defendant was aware, or should have been aware, of the danger, or if the defendant created the dangerous conditions. An attorney can prepare for any potential defense attempts to use the trivial defect doctrine to defeat the claims.   Reach out the experienced attorneys at Silva Injury Law today if you have suffered from a trip and fall case.

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| Read Time: 2 minutes | Personal Injury

California Grocery Store Injury Lawyer

While no one expects to sustain an injury while doing their weekly grocery shopping, it unfortunately happens. The most common injury in grocery stores is slip and fall accidents. These types of accidents can be caused by a variety of factors, such as stray produce and other products that have fallen of shelfs, a wet floor, or unattended ladders or hand trucks.   Grocery stores can be held liable for customer injuries that are sustained while they are on the grocery store’s premises. Speak to an attorney from Silva Injury Law if you were injured in a grocery store.   WHAT DUTY OF CARE DOES A GROCERY STORE HAVE?   Owners and operators of grocery stores have a duty to their customers to keep them safe from danger while in the grocery store. This responsibility, referred to as the duty of care, requires grocery stores to take reasonable steps to make sure that customers are safe.   Examples of responsibilities of grocery stores include: Ensuring aisles are clear of spills and broken glass; Security staff is maintained to prevent violent individuals from harming others; Warning customers of potential slipping danger by setting up warning signs, such as wet floor signs. The grocery store is also required to properly train grocery store staff on how to keep the store safe and clean, allowing them to fulfil their duty and prevent customers from sustaining injuries.   If a grocery store fails to take reasonable steps, such as placing a warning sign and cleaning up hazards, they may be liable to injured customers for failing to operate under a reasonable duty of care.   CAN YOU SUE THE GROCERY STORE FOR YOUR INJURIES?   If you were injured while shopping in a grocery store, you may have the right to compensation. In order to pursue compensation, it will be necessary to prove that the store failed to abide by its standard of care.   To prove negligence, it is necessary to show that the grocery store owner contributed to a dangerous condition in the store, or that the store was aware of the unsafe condition in the store but did not take the reasonable steps to fix the condition.   Factors that help show a grocery store has been negligent include: The dangerous condition existed for an extended period of time before it was resolved; The same dangerous condition caused another customer to be injured in a prior accident; The store employees were aware of the dangerous condition but did not repair it or exercise the required duty of care.   WHAT TO DO IF YOU WERE INJURED IN A GROCERY STORE   You should always seek the medical treatment you need following an accident. Taking clear and detailed photographs of your damages can be helpful in proving your case. Finally, keep documentation of all financial costs associated with your injuries and damages.   If you were injured while in a grocery store, reach out to an attorney. An attorney will best be able to represent you in proving the store’s negligence and contribution to the accident. This will ensure you receive the proper compensation for your damages.   Speak with a skilled and knowledgeable personal injury attorney at Silva Injury Law, who can assess your case, answer any questions you have, and represent your interests in court, ultimately ensuring that you receive the restitution that you deserve.  

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| Read Time: 2 minutes | Negligence

Sidewalk Trip and Fall Injuries in California

If you’ve been injured tripping and falling on a sidewalk, you may be entitled to compensation from the municipality, the property owner or both. These cases are complicated and claimants are unlikely to be successful in collecting large amounts of compensation on their own. There are also short deadlines and picayune requirements for filing notice with municipalities that can cause a claim to be dismissed. That’s why it’s important to call an experienced sidewalk trip and fall attorney in California as soon as possible after your accident to discuss your legal rights. Premises Liability and Negligence In order to be successful with a sidewalk trip and fall injury claim, you must prove the following elements: ● The condition of the sidewalk unreasonably unsafe; ● The parties responsible for the sidewalk’s safety knew, or should have known, it was unsafe; ● The property failed to properly repair or warn of the unsafe condition and ● The unsafe condition caused your injury. It’s also necessary to show that you are legally on the sidewalk. For example, if you crossed police lines or areas marked with “no entry to public,” you would be considered a trespasser, and might not be able to collect compensation. For sidewalk cases, municipalities often impose a duty on adjacent businesses and homeowners to maintain the sidewalk. Who’s responsible may hinge on a few inches and whether you’re a trespasser could depend on the prominence of a warning sign. That’s why it’s important to consult with an experienced sidewalk trip and fall injuries attorney in California that knows how to collect large amounts of compensation for this type of case. Defects and Defenses There are many types of defects that can cause trip and fall injuries due to negligence. These are some examples: ● Raised section of sidewalk slab; ● Pothole; ● Construction Debris; ● Spilled Oil; ● Tree Roots It’s important to remember that if a defect is very small, the court can rule that it was not reasonable to expect the municipality, homeowner or business owner to repair it. It’s important to consult with an experienced sidewalk trip and fall injuries attorney in California as soon as possible after your fall because deadlines can be short and evidence can be destroyed.

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| Read Time: 2 minutes | Negligence

Hotel Injury Cases In California

Most hotels go out of their way to make sure their guests are safe and comfortable, but sometimes they make mistakes that cause serious or catastrophic injuries. Hotel injury victims can be faced with large amounts of medical bills and lost earnings due to long term or permanent disability. The best way to collect the largest amount of compensation possible for the injuries you sustain is to hire an experienced California hotel injury attorney.   Common Types of Accident At Hotels There are many different types of negligent, reckless and intentional acts that can cause injuries to people on a hotel property. These are some of the most common hotel accidents:   Slip/Trip and Fall Accidents: Hotels have a duty to make sure that their flooring surfaces are reasonably safe, and are liable for injuries due to: ○ Overly waxed floors; ○ Wet floors from spills; ○ Mopping floors without proper warnings; ○ Loose floorboards or carpet and ○ Lack of illumination.   Swimming Pool or Beachfront Accidents: When recreational areas are not properly supervised or maintained, the results can be horrific. Hotels are responsible for injuries caused by slides, diving boards, slippery areas and other water activity features.   Sports Accidents: When hotels and resorts offer sports activities and equipment, they’re responsible for the safety of the guests that participate. This includes sports such as tennis, golf, volleyball, water skiing, scuba diving, boating, gyms and fitness classes.   Dog Bites: It’s become increasingly popular for hotels to allow guests to bring their pets along on vacation. It’s the responsibility of the hotel, as well as the owner, to take reasonable steps to ensure that other guests are not bitten by pets on the premises.   Assaults: Hotels have an obligation to provide adequate illumination and security for their guests. If you are assaulted in a parking lot, conference room, guest room or anywhere else on the premises, the hotel can be responsible for the injuries you sustain.   California Hotel Injury Attorney If you’ve been injured on the premises or a hotel, motel or resort, it’s important to speak to an experienced California hotel injury attorney as soon as possible after your accident.

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| Read Time: 2 minutes | Auto Accidents

How Much Is My Personal Injury Case Worth?

If you’ve been injured in a car accident, slip and fall, or from other types of negligent, reckless, or intentional behavior, you’re entitled to collect compensation from the responsible parties. How much you can collect will vary with the severity of injuries, the respective fault of all parties and how much insurance coverage applies. The best way to get an understanding of the value of your case is to consult with an experienced California personal injury attorney who can apply the facts to the law.   Insurance Coverage For Car Accidents In California The California Department of Motor Vehicles requires owners of private passenger vehicles to carry the following minimum coverage: $15,000 for injury/death of a single person; $30,000 for injury/death of all involved; $5,000 for property damage.   Commercial vehicles have higher mandatory minimums. For example, rideshare drivers must carry $50,000 per person, $100,000 per incident coverage. Minimum coverage for trucks varies, increasing with the weight of the truck being insured. The heaviest vehicles, weighing over 10,000 pounds must carry $750,000 single limit policies. If your accident was caused by a municipal vehicle such as a police car or a vehicle owned by a major corporation, the amount you can collect is virtually unlimited. If insurance coverage is insufficient, it’s sometimes possible to make a claim for underinsurance against the policy of the car you’re in.   How Are Settlements and Verdict Calculated Insurance companies make offers to settle cases based on what they believe they might be worth at trial, hoping to save money by offering something less than what a jury might award. It’s usually worth it to accept a settlement because even though a jury could award something astronomical, they could also rule against you and award nothing, so it’s always risky to let a case go to trial. Sadly, this means that even if you sustain very serious injuries, you may only be able to recover the minimum policy limits. It’s also important to remember that even if you’re hit by a vehicle with millions of dollars of coverage, a fender bender case with a sprained ankle that heals quickly, isn’t worth big money. Most cases fall in between these two extremes, with sufficient coverage for the injuries sustained.   California Personal Injury Attorney If you’ve sustained a serious injury, and it’s somebody else’s fault, it’s important to call an experienced California personal injury attorney as soon as possible after the accident. Speaking to a personal injury attorney is the best way to find out how much your case is worth. Please call today for a free consultation.

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| Read Time: < 1 minute | Slip and Fall

What to do after a slip, trip or fall accident?

What to do immediately following a slip or trip and fall accident: Get Medical Attention Although you may feel fine initially, you may have sustained an injury and you cannot feel anything right away due to adrenaline. It is always better to have a medical professional check you over.   Inspect the Area Where the Fall Occurred Check your surroundings to see what you slipped or tripped over. If possible, try to take a picture of the area or have someone else take one for you.   Identify Witnesses Write down the names, addresses, and phone numbers of anyone in the area where you fell that witnessed the fall and/or state of the area where you fell.   Get an Incident Report If you fell in a store or business establishment, get an incident report with the manager of the establishment as soon as possible.   Take Photos As Soon As Possible Again, take photos of the area where you fell. Also, take photos of your injuries immediately after the accident and whenever bruising or swelling begins to occur.   What to do shortly after a slip or trip and fall accident: Consider retaining a personal injury attorney. It is likely that someone from the company will attempt to contact you after the accident. They may seem like they are trying to be your friend, but remember, they work for the opposing party, NOT YOU! They are going to try to get incriminating comments from you and minimize your case against them. Refer anyone who contacts you regarding the accident to your personal injury attorney.   IF YOU HAVE BEEN INJURED AS A RESULT OF A SLIP OR TRIP AND FALL ACCIDENT, CALL SILVA INJURY LAW TODAY FOR A FREE LEGAL CONSULTATION.

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