Wednesday, October 22, 2014

Components of a WINNING Slip-and-Fall or Trip-and-Fall Case

If you have been injured at some “big box store,” and you are having a hard time finding an attorney that will run with your case, you are not alone.  Slip and Fall (and Trip and Fall) cases can be very difficult to win and expensive to litigate.  Part of the problem is that to prove your case, you have to show that the store has some “fault” for what happened. Most people feel like “well, I was injured on their property, so that means they have to take care of me.”  That is simply not the case. 

Consider an incident where you slipped on water on the floor at the store.  Remember, since you are the Plaintiff, since you are the one making the claim, you have to prove that someone else was at fault for causing the injury.  Therefore, generally, you need to prove ONE of TWO things:

(1)  The store spilled the water there.
(2)  Some other customer spilled the water there and the store had sufficient time to clean it up, but did not do so. 

So that you can prove one or the other, here are some valuable tips that you want to consider if at possible before you leave the store (remember your health is the first priority ALWAYS):

1.     Where did the water come from?  Is there a leak somewhere in the store?  Is there a customer that spilled a water bottle? 
2.     WITNESSES.  This is huge.  Can you find other customers that not only saw you fall, but perhaps saw that puddle of water sitting there for some period of time?  Get their names and contact numbers. 
3.     PHOTOS.  Use your phone, take pictures of the area or have someone you are with take the photos.  Try to capture the water spill the best that you can.  Try to include a picture from further away that captures the water spill in context with the surrounding area.   
4.     Ask yourself the question, “why didn’t I see this puddle?”  This leads into the “Open and Obvious Defense.”  The most common argument made to defeat or decrease a Slip and Fall or Trip and Fall claim is the Open and Obvious Defense.  The essence of that defense is that a person should be able to take perfectly good care of themselves when faced with a potential hazard that is open and obvious.  You need to be able to put into words the reasons why you did not see the puddle of water. 

Too often, injured parties rely on the store’s video surveillance equipment to records what happened.  You overestimate the quality of the videotape!  If that video provides some added support to your case, then let that serve as dessert rather then the main meal. 

Remember, because of the difficulty of many of these cases, there are a large number of attorneys that will simply “tune out” the moment they hear you mention “I slipped at the store.”  But, you will greatly increase your chances of success if you can accomplish those items listed above.      

Tuesday, January 7, 2014

When Are Punitive Damages Appropriate?

Generally, an award for punitive damages requires the offending party to have some form of “intent” in their conduct.     

"Punitive damages" are special punishment fees a party may have to pay for egregious acts.  Punitive damages, when applied, are paid in addition to the money a party must pay as compensation for the damages their acts caused.  In 2008, the United States Supreme Court said that punitive damages "are aimed not at compensation but principally at retribution and deterring harmful conduct."  Exxon Shipping Co. v. Baker, 554 U.S. 471, 492, 128 S. Ct. 2605, 2621, 171 L. Ed. 2d 570 (2008).

The various characterizations of conduct allowing recovery of punitive damages include:

(1) Malice—express or implied, Arizona Publishing Co. v. Harris, 20 Ariz. 446, 181 P. 373 (1919); Magma Copper Co. v. Shuster, 118 Ariz. 151, 575 P.2d 350 (App.1977);
(2) Spite or ill will, State Farm Mutual Insurance Co. v. St. Joseph's Hospital, 107 Ariz. 498, 489 P.2d 837 (1971);
(3) Evil intent or bad motive, Smith v. Chapman, 115 Ariz. 211, 564 P.2d 900 (1977); McNelis v. Bruce, 90 Ariz. 261, 367 P.2d 625 (1962);
(4) Gross negligence, Gila Water Co. v. Gila Land and Cattle Co., 30 Ariz. 569, 249 P. 751 (1926); Iaeger v. Metcalf, 11 Ariz. 283, 94 P. 1094 (1908);
(5) Wanton, reckless or willful acts, Lutfy v. R.D. Roper & Sons Motor Co., 57 Ariz. 495, 115 P.2d 161 (1941);
(6) Intentional misconduct, Id.; Wetzel v. Gulf Oil Corp., 455 F.2d 857 (9th Cir.1972);
(7) Fraud, Jenkins v. Skelton, 21 Ariz. 663, 192 P. 249 (1920);
(8) Oppression, Id.; Salt River Water Users' Association v. Giglio, 113 Ariz. 190, 549 P.2d 162 (1976); Jerman v. O'Leary, 145 Ariz. 397, 701 P.2d 1205 (App.1985);
(9) Extreme, aggravated or outrageous conduct, Lerner v. Brettschneider, 123 Ariz. 152, 598 P.2d 515 (App.1979);
(10) Conduct involving an unreasonable risk of causing distress, Wetzel v. Gulf Oil Corp., supra.;
(11) Reckless disregard for or indifference to the rights, interests or safety of others, Smith v. Chapman, supra.; Salt River Water Users' Association v. Giglio, supra; Sellinger v. Freeway Mobile Homes Sales, Inc., 110 Ariz. 573, 521 P.2d 1119 (1976); Neilson v. Flashberg, 101 Ariz. 335, 419 P.2d 514 (1966); McNelis v. Bruce, supra; Schmidt v. American Leasco, 139 Ariz. 509, 679 P.2d 532 (App.1983);
(12) Criminal acts or conduct, Puz v. McDonald, 140 Ariz. 77, 680 P.2d 213 (App.1984);
(13) Acts done in bad faith, Huggins v. Deinhard, 127 Ariz. 358, 621 P.2d 45 (App.1980).

Linthicum v. Nationwide Life Ins. Co., 150 Ariz. 326, 330-31, 723 P.2d 675, 679-80 (1986). 

Each of the above stated characterizations involve some form of legally recognized intent.  This intent may be true, actual intent or it may be imputed, or assigned. In other words, this intent, also known as an "evil mind" "may be 'manifested in either of two ways. It may be found where defendant intended to injure the plaintiff. It may also be found where, although not intending to cause injury, defendant consciously pursued a course of conduct knowing that it created a substantial risk of significant harm to others.'”  Nardelli v. Metro. Grp. Prop. & Cas. Ins. Co., 230 Ariz. 592, 604, 277 P.3d 789, 801 (Ariz. Ct. App. 2012), Citing Rawlings v. Apodaca, 151 Ariz. 149, 162, 726 P.2d 565, 578 (1986).

In summarizing all the required elements for punitive damages, the Supreme Court of Arizona demonstrated the importance of this evil mind, stating:

The key [to punitive damages] is the wrongdoer's intent to injure the plaintiff or his deliberate interference with the rights of others, consciously disregarding the unjustifiably substantial risk of significant harm to them. Rawlings v. Apodaca, 151 Ariz. [at] 161, 726 P.2d at 577. While the necessary “evil mind” may be inferred, it is still this “evil mind” in addition to outwardly aggravated, outrageous, malicious, or fraudulent conduct which is required for punitive damages.

Thompson v. Better-Bilt Aluminum Products Co., Inc., 171 Ariz. 550, 556, 832 P.2d 203, 209 (1992).

Thus, while the level of intent is considered in tortious acts, a person may still subject themselves to punitive damages if the wrongful acts were so outrageous that they “disregarded” a “substantial risk” of “significant harm.”