Concealed holes are a dangerous hazard that many property owners overlook. If you tripped or fell into a hole on someone else’s property, you may be wondering if you have grounds for a personal injury claim. The answer to this question depends on the circumstances. The easiest way to find out if your case has merit and how best to proceed is to speak with a premises liability lawyer.
That said, you may find it helpful to learn the answers to some frequently asked questions about these cases. Below, we’ve addressed some general FAQs about premises liability claims involving concealed holes:
1. Who might be liable if the injury happened on a construction site?
Many of these cases involve a subcontractor or employee who fell into a concealed or negligently marked hole on a construction site. In this scenario, you may have to file a workers’ compensation claim, or you might be able to bring a personal injury claim against the property owner or anyone whose negligence contributed to your injury such as a general contractor.
2. How might my personal injury attorney prove liability?
To prevail in a premises liability claim, you will have to prove liability, causation, and damages. If you intend to bring the claim against the property owner or possessor, liability can be established by proving:
- The defendant had actual or constructive knowledge of the dangerous condition; and
- The defendant failed to take reasonable measures to remedy the condition or to warn you about it.
Actual knowledge means the defendant was aware that the hole existed. For example, actual knowledge can be established by proving that the defendant created the hole or was notified about it.
Constructive knowledge means the hole existed for a sufficient period of time for the property owner or possessor to become aware of it through the exercise of reasonable diligence. If you were an invitee—meaning you were on the property for a business purpose, such as a customer at a grocery store—the property owner or possessor would have had a duty to perform reasonable inspections to identify dangerous conditions. Constructive knowledge can therefore be established by demonstrating that the hole existed for such a period of time that it would have been discovered through reasonable inspection.
Evidence to establish actual or constructive knowledge may include:
- Eyewitness deposition;
- Surveillance footage;
- The incident report;
- Past complaints made about the hole; and
- Photos of the hole.
After proving that the defendant had actual or constructive knowledge of the hole, your premises liability lawyer will have to demonstrate that the defendant breached the duty of care by failing to take reasonable measures to remedy the hazard or to warn you about it. The evidence listed above can serve as evidence that the duty of care was breached, thus establishing liability.
3. What damages can I pursue?
Victims of personal injury in California can pursue compensation for both economic and non-economic damages. In cases that involve malice, oppression, or fraud, punitive damages may also be obtainable.
Economic damages are the objectively verifiable expenses arising from the accident. Examples include medical bills, lost wages, domestic help, child care, and transportation. Any reasonable and necessary costs related to your injury might be recoverable.
Non-economic damages are subjective. They include pain and suffering, loss of life enjoyment, and emotional distress. Depending on the nature of the injury, the spouse of an injured party may be able to seek compensation for loss of consortium, which is the loss of comfort, care, intimacy, affection, society, moral support, protection, and love.
Punitive damages are rarely awarded in premises liability cases since most of these lawsuits are brought on the basis of ordinary negligence. To win punitive damages, your lawyer will have to prove that the defendant acted with malice, oppression, or fraud. The most frequent basis for awarding punitive damages is malice, which is established by proving that the defendant acted with an intent to harm or with a willful or conscious disregard for the safety and rights of other people.
Evidence of damages may include:
- Pictures of injuries;
- Diagnostic images, lab test results, and other medical records;
- Medical bills;
- Financial documents;
- Receipts for costs arising from your injuries;
- Expert witness deposition;
- Your personal injury journal; and
- Deposition from family members and caregivers who have witnessed the psychological impact of the injuries.
4. What can I do to strengthen my premises liability case?
While the outcome of your case is somewhat out of your control, there are steps you can take that might improve the odds of winning a fair settlement or verdict. Those steps include:
- Get an Official Diagnosis Right Away: You will need documentation to prove the kinds of injuries you sustained and their severity. If you put off your medical evaluation, the opposing party might say that your injuries were caused by something else or that they couldn’t be that serious since you did not need immediate care. Alternatively, they might assert that your medical costs would have been lower if you had visited a doctor right away and therefore you should not receive compensation for 100 percent of your damages.
- Disable Your Social Media Accounts: The defense may use your social media posts to challenge your lawsuit. Pictures of you in the hospital or out with friends might bring the severity of your injuries into question. Any photos of you participating in strenuous activities may be used to prove a failure to mitigate damages. Even just describing the accident in a text post might hurt your case if your description of events contradicts other evidence or brings liability into question.
- Do Not Provide a Statement to the Opposing Party: If you are contacted by the defendant or their insurance company, politely decline to answer their questions and, instead, direct them to your premises liability lawyer.
- Follow Your Doctor’s Orders: If you deviate from your doctor’s orders, you might face a dispute over a failure to mitigate damages.
Speak with a Premises Liability Lawyer in Long Beach Today
Your Injuries Are Personal to Me
If you were injured by a concealed hole on someone else’s property, contact the Law Office of Michael D. Waks to schedule a free consultation. You can reach us 24 hours a day, 7 days a week by calling (562) 206-1939 or sending a message on our Contact Page.