Instructive Differences Between Premises Liability and MVA Cases
By: Michael Neff
The Law Office of Michael L. Neff, P.C.
“Premises liability cases are really different than car wreck cases.” I say this phrase a lot to lawyers in Georgia and around the country. Most adults I’ve met have driver’s licenses. Thus, most people are familiar with the need to follow the rules of the road to keep people safe. Jurors often have a heuristic that they can use to assess liability in a car wreck cases. Further, because of this shared experience, many lawyers don’t have a steep learning curve when learning to handle car wrecks.
The same is not true in a premises liability case. The average person doesn’t have experience owning, managing, or operating commercial real estate. Thus, they don’t know about safety rules that exist to keep workers and invitees safe. As a result, jurors don’t have a schema for assessing liability. They have to be taught the right way to manage property to eliminate or mitigate the risk of serious injuries.
The same may be true for the judge sitting on the bench. Because the safety rules that govern property are not as well-known as those involving driving safety, a judge may not appreciate the significance of liability.
Culturally, many have grown up with a dim view of premises cases going back decades to people slipping on a banana. For many, premises liability lawsuits are a bad joke, a set up for a tort reform punch line.
When dealing with a premises case, there is different law, different psychology, and different damages valuations by insurance companies and many jurors. As a result, learning to handle premises liability cases is a necessity. Unfortunately, that process takes time. My mother used to tell me, “Rome wasn’t built in a day” whenever she wanted to convey I needed to keep working on something. Just like building a house takes time and requires mastering many steps, so does building competence in premises liability cases. It takes work to overcome the prejudice against premises liability claims.
My firm handles multiple varied premises cases every year – from apartment complex attacks, to deck collapses, fires, explosions, and slips and falls. One thing I always remember is that each premises case is different. They are time consuming, often expensive, and nuanced.
The good news is that the first step to fixing a problem is recognizing that one exists. From there, you can explore solutions. To start learning the differences between a premises case and a car wreck, look for resources that will help to give you perspective. For the law, take a look at leading premises cases.
I remember reading Robinson v. Kroger and applying it to my cases. Doing this cemented my understanding of how important the case is and how to pursue discovery to help you build your case in chief. Michael Gorby’s book on premises liability is also a great place to start learning about the law in Georgia.
Of course, everyone favors and remembers their own victories. So, I should remember Monitronics v. Veasley. That case cements how a defendant can be liable for voluntarily undertaking a duty (from marketing claims to potential customers). You should remember it if you have an alarm case.
Kroger v. Schoenhoff is a favored win that supports the important concept of constructive knowledge. Kroger had no evidence that it complied with its inspection procedures. Thus, there was no obligation to present evidence of how long a dangerous puddle existed on the floor of its store. Kroger also had employees in the vicinity of the fall that could have seen the puddle had they undertaken a conscientious inspection. There was also evidence that Kroger spoliated evidence, which is a huge issue in all premises cases.
Six Flags of Georgia v. Martin was a great result for Georgia plaintiffs because it affirmed the holding in Piggly Wiggly that if a hazard exists on a premises the owner or occupier can be liable even if the injury takes place off the premises.
Once you’ve taken a look at the law, it is time to take a look at damages. It is a good idea to utilize CaseMetrix for doing research on how other premises cases have resolved. See what has happened in the past. However, don’t be governed by what others have chosen to do. Some people may tell you a premises liability case is worth 1.5 times the special damages. Some people used to tell me that a car wreck was worth two to three times the specials. That may be a good rule of thumb to assess whether you are going in the right direction, but it isn’t aspirational if you want to do something special.
In many cases, rules of thumb are an invitation to sell the client’s recovery very short. Some cases when put together well can be worth 5 times, 10 times, 20 times, 100 times or more the special damages. Talk to experienced trial lawyers. Don’t be boxed in by the insurance adjuster’s view of the world (fueled by their actuarial numbers). Look for guidance not precedent when looking at the value of other cases.
For juror psychology, there is no substitute for experience. However, it takes time to develop the “lawyer vision” necessary to assess a case or a witness and devise a plan of attack. I wish I appreciated this more when I was starting out. I naively thought that some intelligence and a lot hard work would lead to success. It does, but only when repeated on top of experience.
After some lessons learned the hard way, I associated more experienced counsel and picked their brains while I watched how they put the case together. Looking back, I could call those experiences “Law School No. 2” and the fees earned by the more experienced lawyers “Law School Tuition No. 2.” However, the lessons I learned from working with them I have applied to every other case since. They were the best investment I ever made.
On top of associating other lawyers, I read a lot of law books. However, starting out I learned so many things that it was sometimes overwhelming trying to process it all. Over time, the two that stood out to me are David Ball’s Damages and Rick Friedman and Pat Malone’s Rules of the Road.
From Damages, I first learned to focus opening statement on the Defendant’s conduct. Ball uses his background in theater to guide lawyers on presentation. He uses the knowledge obtained from doing many focus groups with many fine lawyers (and probably his engineering background as well) to instruct on structure. Readers learn about style and substance. It’s an excellent book.
In Rules of the Road, Malone and Friedman address how to figure out liability. That’s a big deal.
When I decided to write a book, I wanted it to be about the psychology and tactics of a case rather than legal precedents. Once a lawyer learns the law, that is only half the battle. Knowing the law won’t guarantee success. Instead, one has to understand the importance of the evidence on liability and damages and how to present it with the most impact. My goal was that a blending of Damages and Rules of the Road would result in a different book – one I wish I had years ago.
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