Premises Liability Claims for Falls and Construction-Related Traumatic Brain Injuries

Have you or a loved one suffered a TBI due to a dangerous condition or property? Learn about your legal rights.

Want to learn more about navigating insurance claims related to traumatic brain injuries?

When a dangerous condition or property causes an injury, there is a potential premises liability claim. Property insurance policies, including homeowners and commercial general liability insurance, can provide substantial financial compensation for these injuries. There may even be excess or umbrella insurance policies that provide additional coverage. Our law firm has successfully represented many clients who were severely injured by dangerous conditions on the property and construction job sites that caused TBI and other catastrophic injuries.

Property owners, managers, tenants, architects, engineers, contractors, and others in control of the property or responsible for the dangerous condition have insurance that will pay for settlements and verdicts for civil claims, provided that the facts meet the required legal standards. That insurance can be a substantial financial resource if a recovery can be made.

When someone falls or has another injury on the premises and sustains a severe injury, there is no guarantee that they will win at trial or be able to settle a claim out of court. Each state has its own tort law. The law of each of the fifty states applies to premises liability claims in each state. State statutes, court rules and prior case decisions establish the requirements in each state. Generally, however, most states require the injured party to prove that those in control of the property or those that created the dangerous condition on the property had a duty to make and keep the property safe, that there was a dangerous condition on the property, that those in control of the property had notice of dangerous condition before the incident, and that the dangerous condition caused the personal injury. The injured party bears the burden of proving each element of the claim for the lawsuit to be successful.

Some examples of cases where our firm represented individuals who sustained a TBI due to dangerous conditions on the premises or construction job sites underscore the importance of thorough investigation in these cases.

The Case of the Falling Pipe Flange

Cohen Placitella & Roth represented a welder who suffered a severe and disabling open head TBI and successfully obtained a multimillion-dollar recovery that was declared a “Top Verdict and Settlement” by the New Jersey Law Journal. Our client was performing maintenance work on the infrastructure of a cement plant when he was struck on the head by a 12-pound steel pipe flange that was dropped, and fell several stories, by a fellow employee doing repair work on a scaffold about 30–40 feet directly above where our client was working. When the flange struck our client’s head it knocked off his safety helmet. Although his helmet helped save his life, the flange also struck the side of his head, causing a severe open TBI, long-term cognitive issues, and total disability.

Under state law, our client was not able to make a claim against the worker who dropped the flange, because they both worked for the same company. The employer was immune from a lawsuit, and the only benefits the employer was required to provide were workers’ compensation benefits. This is known as the exclusive remedy doctrine. Learn more about this topic by reading Workers’ Compensation and Veterans’ Benefits. Workers’ compensation benefits are limited and inadequate to provide for our client, his family, and the lifetime of care he requires.

An extensive investigation and research into the details of this project established that the plant operator and property owner had taken an active role in project supervision. The exclusive remedy doctrine does not apply to parties (companies or individuals) other than the employer. Evidence established that the companies that owned and operated the plant (not our client’s employer) supervised this project and had assigned the worker who dropped the flange to work directly above the location where our client was working — a known safety hazard. The plant owner and operator also failed to provide a safety net, which would have prevented this incident, failed to make the property safe, failed to protect our client, and failed to follow construction safety standards. These unsafe worksite condition caused our client’s injuries. We obtained the necessary evidence and hired a team of the best construction and job safety engineers as expert witnesses. As a result, our firm was able to make a recovery that made a real difference in the lives of our client and his family.

The Case of the High-Speed Roll-Up Door

In another premises liability case, our client was injured at work when a high-speed roll-up door struck his head while he was entering the property by passing under the door. Our client did not close the door; instead, the door was on a preset timer. Our investigation revealed that the door failed to have a typical safety device that is required to prevent exactly this injury — a photocell in the door frame. This safety feature would have prevented the door from closing if anything or anyone was within the door frame. Instead, the door was equipped with a timer only, and the door would automatically close even if something or someone was in the door frame. When the door struck his head, it caused a significant TBI that left our client with cognitive deficits that kept him from returning to work. At the time of his injury, our client was only 55 years old.

This case required us to prove to the jury the importance of never treating safety as an option. A challenge in this case was proving that our client, who appeared physically fit and active, was disabled by an injury that the jury could not see. Juries need to understand the effect of a TBI: how it changes the person and alters their life. We met with our client’s family, friends, medical providers, and colleagues and learned about our client’s injuries. These experts were able to explain to the jury how the trauma to our client’s brain impaired his function and, in turn, how that prevented him from processing and retaining information and from being able to safely perform simple tasks. Our client’s family was also seriously affected by his disability. Our client’s wife’s testimony about his difficulties, frustration, personality changes, and the significant amount of support he needed after his injury and treatment was compelling, and the jury awarded significant damages to provide for the rest of their lives. Our trial theme was that safety on the job is not an option, and the jury agreed.

Fall Related Traumatic Brain Injury Claims

We have successfully represented clients in many types of premises liability cases where the negligent conditions of the property (commercial and residential) caused injuries, including:

Slips and Falls on Wet Floors: Injuries from slipping on spills or wet surfaces.
Falls on Ice-Covered Sidewalks, Parking Lots, and Walkways: Injuries from falls on ice which should have been removed.
Trips and Falls on Uneven Surfaces: Injuries from tripping over cracks in sidewalks or uneven flooring.
Falls from Ladders: Injuries while using ladders.
Falls from Stairs: Injuries due to slipping or tripping on stairs, including those where handrails are missing or damaged and where the condition of the stairs was poor.
Falls from Elevated Surfaces: Injuries due to falling from elevators, escalators, work platforms, or balconies due to inadequate guardrails.
Falls Due to Poor Lighting: Injuries occurring in poorly lit areas where hazards are not easily visible.

Construction Accident TBI Claims

We have successfully represented construction workers involving negligence which caused construction sites injuries, including:

Falls from Heights: Injuries from falling from roofs or elevated platforms.
Falls into Holes or Trench Collapses: Injuries from falling into unmarked or poorly covered holes or injuries from work trenches collapsing upon workers.
Falls from Ladders and Scaffolding: Injuries due to improper use or unstable ladders and unsafe scaffolds.
Slips on Construction Materials: Injuries due to workers slipping on loose materials like gravel, sand, or debris.
Falls from Equipment: Injuries from falling off machinery or vehicles (including man-lifts, cherry pickers, and order pickers)
Falls Due to Lack of Personal Protective Equipment (PPE): Injuries occurring when workers are not using fall protection gear.
Falls in Weather Conditions: Slip-and-fall injuries when conditions on the job site or location are wet or icy or when windy conditions affect balance and stability.

Although state laws are different, states have similar elements of any claim for premises liability. Duty is simply the responsibility of the property owner or individual or company in control of the property to keep the property free of dangerous conditions. During a construction project, the architects, engineers, contractors, inspectors, and others each have a responsibility to keep the property free of dangerous conditions, like an owner.

Did You Know?

The legal duty of an owner or someone else in control of the property varies from state to state, but generally those in control of the property are responsible to those people legally on the property for physical harm caused by a dangerous condition on land if they:

(a) know or by the exercise of reasonable care would discover the condition, and should realize it involves unreasonable risk of harm, and
(b) should expect that persons legally on the property will not discover or realize the danger, or fail to protect themselves against it, and
(c) fail to exercise reasonable care to protect them against the danger.

Determining who has a duty to a person legally on the property is not always clear. When someone is injured in a shopping mall due to dangerous conditions created by an ongoing construction project who is in control of the property? Is it the property owner, the general contractor who was supposed to oversee safety on the job, the subcontractor who created the dangerous condition, the property manager hired by the owner to supervise the contractors, the architect or engineers that designed the project, or the private security company who had the responsibility to redirect pedestrians during construction? Often, the answer is that some or all these individuals and parties had some control over the premises and may, based on the facts, share legal responsibility.

Source: Restatement (Second) of Torts, § 343 (1965).

Notice is another required element of a premises liability claim. To establish liability, the injured person must prove that the property owner or possessor had knowledge or should have had knowledge of the dangerous condition, and failed to repair, warn, barricade, or otherwise protect people from injury.

In most states, the injured party can prove notice in one of two ways: actual or constructive notice.

Actual notice is when the party with the duty of care knew that a dangerous condition existed and failed to fix it. An example would be a supermarket with dangerous, broken pavement around a store entranceway. If employees and customers make written complaints about the condition, there is compelling evidence that the supermarket has actual notice of the condition.

Constructive notice, on the other hand, refers to cases where the party who is in control of the property with a duty to maintain it should have known of a dangerous condition. So, for example, if the broken pavement in front of the supermarket existed for any period, the supermarket should have been aware of the danger because a property owner has a duty to inspect.

Significantly, if the injured party can prove that if a party created the dangerous condition — for example, a pipe leak caused by poor building repairs leads to a fall — then there is no requirement for the injured party to prove notice.

The injured party must also prove that condition of the property was dangerous. A dangerous condition, such as broken pavement on the entrance to a supermarket, poses a risk of a trip, fall and serious harm. We cannot count the times our law firm has successfully represented clients who suffered TBI’s due to seriously dangerous conditions—accidents waiting to happen.

To prove that property conditions are dangerous, we collaborate with various experts, and consult industry standards and government regulations. Typically, safety experts, such as experienced contractors, engineers, and architects, analyze the incident and property conditions and determine whether the condition was dangerous. Sometimes we prove that the premises failed to comply with established safety codes, regulations, laws, and industry standards. Building codes, for instance, set forth minimum safety requirements. Violations of these codes are evidence of negligence. Industry standards from organizations such as the Occupational Safety and Health Administration (OSHA), the National Safety Council, and local or national building codes and standards can also be helpful in providing benchmark safety practices.

Finally, the injured party needs to prove that the dangerous condition is the cause of the injury. To do this we offer evidence, which can simply be eyewitness testimony, or if necessary, through expert testimony from physicians. Expert testimony from medical professionals is necessary to prove the severity of the injury and its relation to the dangerous condition. For example, testimony of qualified physicians, based on their education, training, experience and medical tests, such as the CT, is used to prove that the incident and all complications and limitations from that injury were caused by the incident.

Together, these elements of duty, notice, dangerous condition, and causation combine to establish the liability of the parties responsible for the injuries.

Assuming the injured person can satisfy all the elements of a premises claim under state law, there are still hurdles to make a recovery — and those are the legal defenses to the claim. The defendant in the lawsuit can of course offer defenses to the claim, as allowed by state law, and again each state has unique laws. However, there are some typical defenses to premises liability claims.

For example, the defenses to a premises liability claim include comparative negligence or contributory negligence of the injured party. These defenses are based on the evidence that the injured party shares all or some responsibility for the incident due to their own actions or inattention. A few states, such as Maryland, have a harsh contributory negligence defense that provides that if the injured party is even 1 percent at fault, there can be no recovery. Many states, like Pennsylvania and New Jersey, recognize comparative negligence, which allows the injured party who is 50 percent or more responsible for the incident to still make a recovery; in those states, any award against the property owner will typically be reduced by the injured party’s pro rata share of responsibility.

Source:
Radiographics: A Review Publication of the Radiological Society of North America, Inc.

Property owners, contractors, and others in control of the premises where the injury occurred have other defenses as well. For example, they can defend themselves by claiming that the dangerous condition causing the fall was open and obvious, meaning that a reasonable person should have recognized the danger and taken precautions. They can defend themselves on the basis that the injury was not foreseeable, that the incident was caused by an unforeseen event that could not have been prevented. They can also defend by claiming that there is no duty of care owed to someone who is unlawfully present on a property. Those in control of the property raise this defense if the injured party was trespassing or in a restricted area.

These defenses are based on state law, and property owners, contractors, and those in control of the premises offer these defenses to try to prove that the property owner is not liable for the injuries sustained. These defenses are usually a question of the fact to be decided by the jury. Experienced lawyers for the injured and innocent know that a full investigation is required to evaluate the merits of any premises liability claim, including any legitimate defense.

Need help investigating your legal rights related to a traumatic brain injury?

Speak to an experienced brain injury attorney team like Cohen, Placitella & Roth.

For five decades, CPR has successfully represented individuals and families in TBI cases nationwide working with qualified co-counsel.

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