By Marc Simon, Esquire CEO Simon & Simon, PC.
Amidst the prime snowfall months of the unpredictably treacherous Philadelphia winter, the influx of potential plaintiff snow-and-ice fall down calls is inevitable. These cases can be as complicated and difficult to navigate as a snow-covered South Philadelphia side street, only to find that the time-consuming and expensive venture we undertook may not be worth the recovery for our clients, or for our firms. This winter, don’t let your case inventory pile up with 3 feet of snow and ice fall down files. Remember these three (3) tips to avoid the pile-up.
1. CREATE A THOROUGH INTAKE PROTOCOL AND STICK TO IT
While this may seem like an obvious part of any injury firm protocol, it is important to make sure your intake team has a thorough underwriting process in place, especially in preparation of the legal nuances involved in snow-and-ice cases. An abbreviated intake deficient of important information will make it all that more difficult down the litigation road. Just because your client slipped and fell on snow or ice does not necessarily mean that her claim will hold up in court, nor does it mean that pursuit of that claim will be a good use of her time, or your firm’s resources. It is essential to determine not only what exactly your client slipped on; snow, ice, black ice, salt, but the specific conditions of the slippery surface. For example, the extent to which the snow or ice had been treated, shoveled, scraped, salted, snow-blown or melted could make all the difference to a judge or jury when it comes to negligence and liability. Moreover, don’t take location for granted. The difference between simply knowing the address in which the fall occurred, and the exact position of the fall in relation to what pathways within the property could make all the difference in proving the property owner, or snow removal company’s liability. Lastly, know when exactly your client fell, especially in relation to the last snow fall, and last snow clean up. While these examples are no conclusive by any means, they demonstrate a need for thoroughness and precision. A precise and thorough intake on snow and ice cases can make all the difference in avoiding getting buried under a pile of unmanageable files.
2. FILE SUIT AS SOON AS POSSIBLE
Now that you’ve carefully chosen to take on your client’s snow and ice fall down case, it’s time to look toward litigation. The litigation process is your most valuable resource in gathering all of the information you need to successfully, and most importantly, properly, pursue your client’s claim. Your biggest enemy in these cases is often not the defendant, but the statute of limitations. Unlike your typical auto accident case with a police report and immediate communication with the insurance companies, a much more extensive investigation is necessary to determine the proper defendants among a group of potential suspects: the landlord, the tenant, the maintenance and/or snow removal company or a municipality. Don’t be surprised when your spoliation and representation letters go unanswered and don’t expect cooperation from a tenant or property owner. Take it upon yourself to make sure that you have the right defendants. More often than not, this investigation requires litigation based, Judge-ordered discovery, only after which you find yourself amending your Complaint to add previously unknown, but necessary defendants. Use the resources at your disposal to find all who are responsible for your client’s injury. Filing suit as early as possible is the only way to shelter yourself from the storm of summary judgment Motions from improper defendants.
3. AVOID THE SOVEREIGN IMMUNITY DEFENSE
When priming a snow-and-ice case for litigation, the first legal concept we all turn to is the “of” versus “on” distinctions set forth in 42 Pa. C.S. § 8522(b)(4) and 42 Pa. C.S. §8542(b)(3) and (7). Knowing that the municipality cannot be held liable, primarily or secondarily, where snow falls or ice forms “on” real property, filing suit against the proper (hopefully insured) entity is of the utmost importance. However, we have all run into the frustrating uninsured or sovereign immunity scenario where the municipality is the only pocket from which our client might be compensated. While most of the time these cases are lost causes in terms of recovery due to sovereign immunity, it could be worth it to dig a little bit deeper. Remember, just because snow or ice was the culprit of your client’s fall, the municipality is not always off the hook. For example, if the sidewalk or street had a defect or depression in which water pooled and froze over, or if water emanated from a defective drain or pipe, the defect “of” the property would impose liability against the City. Don’t use “sovereign immunity” as an excuse to turn away a client. A full legal and factual investigation into whether sovereign immunity actually applies could make all the difference to both your client and your firm.
Now that we have dug ourselves out of the blizzard of 2016, we don’t want to become buried yet again by an avalanche of incomplete and underdeveloped snow-and-ice slip-and-fall files. By getting out ahead of the complex issues that always arise in these cases, you can prepare yourselves for the storm that’s coming so that everything comes.
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