The law in Utah places strict liability on dog owners. Utah Code Annotated Section 18-1-1(1) states; "[e]very person owning or keeping a dog is liable in damages for injury committed by the dog." The statute clearly places liability for any damages caused by a dog on its owner. The statute also addresses any defenses that the owner may assert that their dog was not a vicious dog by nature, when it states;
"it is not necessary in the action brought therefor to allege or prove that the dog was of a vicious or mischievous disposition or the the owner of the dog knew that i t was vicious or mischievous."
Therefore, simply because a dog may typically be a nice or gentle dog is not a defense to liability. The statute clearly places a burden on dog owners to supervise and monitor their dogs at all times. This, however, does not provide a free road to recovery for victims to dog bites. The Utah Courts have also applied comparative fault principles to dog bite claims. That means that the owner of the dog is only liable for damages relative to his or her percentage of fault. In other words, if it is determined that a victim provoked a dog or caused the dog to bite as a result of the victim's own negligent or intentional actions, then the victim would likely not recover all of his or her damages from the dog owner. A court would have to apportion fault to both the dog owner and the victim. It is important to note that if a dog owner's liability were determined to be less than fifty percent, the victim would be barred from recovery.
The law, however, treats victims different based on their age. This is important as most dog bite victims happen to be children. The courts in Utah have held that ordinarily a child under seven years of age is conclusively presumed not guilty of contributory negligence. As a result, a dog bite victim under seven years of age would more than likely recovery all of her damages under the law. A child between the ages of seven and fourteen is also generally assumed not to have the same consciousness of danger and the same judgment as an adult, absence a showing to the contrary. Children over fourteen, however, are generally charged with having attained sufficient development which imposes upon him the same degree of care as an adult, absent a showing to the contrary. See Nelson v. Arrowhead Freight Lines, 104 P.2d 225 (Utah 1940). For dog owners, this puts an even greater emphasis on monitoring a dog's actions around young children.
It is also important to point out that this law places liability on every person owning or keeping a dog. The courts have interpreted the words 'keeping a dog' to apply to any person "exercis[ing] a substantial number of the incidents of ownership." See Waters v. Powell 232 P.3d 1086, 1087 (Utah App. 2010). This would include feeding, watering, walking, cleaning the dog. While exercising only one of these incidents of ownership, in the case of someone merely walking the dog, would not be sufficient to impose liability, multiple incidents likely would. Practically, this would apply to kennels and/or doggy day care facilities.
As a result of these laws, it is important for dog owners to make sure that they are properly insured for any damages that their dog may cause. It is important to closely examine the "Personal Liability" provisions of your homeowner's policy to verify that any damages caused by your dog will be covered and that your policy limits are sufficient to cover the damages. Not only is it important to verify that your insurance will cover damages caused by a dog, you also need to verify that it will cover the specific breed of dog. Most, if not all, insurance policy will exclude coverage for certain breeds of dogs. This is important, not only for dog owners, but for dog bite victims. While it is likely that you may know the owner's of the dog that caused injury, as in many cases it is a dog belonging to a neighbor, friend or family member, it is important to understand that their home owner's insurance will likely be responsible to cover the damages and will not cause the dog owner to pay any damages out of their own pocket. After all, that is why adequate insurance is so important.
If you have any questions in regards to a dog bite or liability resulting from a dog bite, please give us a call at (435)753-4775. Or visit us at http://www.ericsonshaw.com
Thursday, February 23, 2012
Thursday, February 16, 2012
Personal Injury - Slip and Fall - Landowner Liability
Many personal injury cases are of the slip and fall variety, these include slipping on wet spots inside a store, slipping and falling on ice on a sidewalk or tripping over other debris on property owned, operated or occupied by a business. In most circumstances a person who sustained injuries as a result of one of these falls can recover from the landowner or storeowner. As with all civil cases, however, the injured party has the burden of proving negligence on the part of the landowner.
The law places upon a landowner, a duty to maintain their premises in a reasonably safe condition or to warn any visitors of any dangerous condition on the premises. It is important to understand that the mere presence of a slippery spot on floor does not in and of itself establish negligence. Silcox v. Skaggs Alpha Beta, Inc., 814 P.2d 623, 624 (Utah Ct. App. 1991). A business owner is charged with the duty to use reasonable care to maintain the floor of his establishment in a reasonably safe condition for his patrons. Jex v. JRA, Inc., 2008 UT 67. These dangerous conditions fall into two classes; those involving temporary conditions and those involving permanent conditions. A temporary condition involves some unsafe condition of a temporary nature, such as a slippery substance on the floor and usually where it is not known how it got there. See Allen v. Federated Dairy Farms, Inc., 538 P.2d 175, 176. A permanent condition, obviously, involves some unsafe condition of a permanent nature, such as: in the structure of a building, or of a stairway, which was created or chosen by the landowner or his agent, or for which he is otherwise responsible. A permanent condition could also involve a storeowner's method of operation which creates a situation where the reasonably foreseeable acts of a third party will create a dangerous condition. See Canfield v. Albertson's, Inc., 841 P.2d 1224, 1226 (Utah Ct. App. 1992).
Under a temporary unsafe condition theory, a plaintiff must show that; (1) the landowner had actual knowledge of the condition or should have known about the condition because it had existed long enough that it should have been discovered; and (2) after obtaining knowledge of the condition, sufficient time had elapsed that in the exercise of reasonable care he should have remedied the condition (it is also important to note that this requirement does not apply if the defendant or his agent or employees created the unsafe condition).
The most difficult obstacle for a plaintiff is establishing that a temporary condition existed long enough to give a store owner constructive knowledge of the condition. The law requires a plaintiff to show that the condition existed for an "appreciable time." See Ohlson v. Safeway Stores, Inc., 568 P.2d 753, 754 (Utah 1977). A case often pointed to by the courts as an example of a showing of appreciable time is one in which there was spilled spaghetti in the aisles of a grocery store. In that case, the plaintiff was successful in meeting this burden because the produced evidence that the spaghetti "was dirty, crushed, broken into small pieces, and extended from [one] aisle around the end of that aisle to the main aisle [of the store] for five or six feet toward the cash register at the front of the store. See Ohlson at 754.
In contrast, the courts point to the case of Jex v. JRA, Inc., 2008 UT 67, 196 P.3d 156, as an example of a plaintiff who was unable to meet the appreciable time showing. In that case slipped on a puddle of water in the store. The plaintiff produced evidence that she was the first customer in the store that morning and the fourth person to walk into the store on the morning of the incident. To prove that the defendant had adequate notice of the condition, the plaintiff relied on the fact that the defendant's employees had shoveled snow that morning and wore boots with deep treads, arguing that the employees had likely tracked the snow into the store. The court, however, held that the plaintiff did not provide sufficient evidence as to the amount of time the unsafe condition existed. Jex at19.
As a result of the foregoing decisions, it is easy to see that the initial and most vital inquiry in such a case focuses on how long the hazard existed. Therefore, the facts existing at the time of the fall are very important. If possible, it is very helpful to have photographs of the condition of the items that caused the fall and the premises in general. It is important to note their position on the ground. It is also important to gather witness statements from anyone who may have seen the fall or been in or on the premises immediately prior to the fall. Another helpful item is to gather any inspection logs or reports kept by the landowner to indicate when the last time sweeping or any other cleaning was done. All of these facts are important and will make or break a slip and fall case. If you have any questions about this or any other laws concerning your slip and fall case, please give us a call at (435)753-4775 or visit us at http://www.ericsonshaw.com.
The law places upon a landowner, a duty to maintain their premises in a reasonably safe condition or to warn any visitors of any dangerous condition on the premises. It is important to understand that the mere presence of a slippery spot on floor does not in and of itself establish negligence. Silcox v. Skaggs Alpha Beta, Inc., 814 P.2d 623, 624 (Utah Ct. App. 1991). A business owner is charged with the duty to use reasonable care to maintain the floor of his establishment in a reasonably safe condition for his patrons. Jex v. JRA, Inc., 2008 UT 67. These dangerous conditions fall into two classes; those involving temporary conditions and those involving permanent conditions. A temporary condition involves some unsafe condition of a temporary nature, such as a slippery substance on the floor and usually where it is not known how it got there. See Allen v. Federated Dairy Farms, Inc., 538 P.2d 175, 176. A permanent condition, obviously, involves some unsafe condition of a permanent nature, such as: in the structure of a building, or of a stairway, which was created or chosen by the landowner or his agent, or for which he is otherwise responsible. A permanent condition could also involve a storeowner's method of operation which creates a situation where the reasonably foreseeable acts of a third party will create a dangerous condition. See Canfield v. Albertson's, Inc., 841 P.2d 1224, 1226 (Utah Ct. App. 1992).
Under a temporary unsafe condition theory, a plaintiff must show that; (1) the landowner had actual knowledge of the condition or should have known about the condition because it had existed long enough that it should have been discovered; and (2) after obtaining knowledge of the condition, sufficient time had elapsed that in the exercise of reasonable care he should have remedied the condition (it is also important to note that this requirement does not apply if the defendant or his agent or employees created the unsafe condition).
The most difficult obstacle for a plaintiff is establishing that a temporary condition existed long enough to give a store owner constructive knowledge of the condition. The law requires a plaintiff to show that the condition existed for an "appreciable time." See Ohlson v. Safeway Stores, Inc., 568 P.2d 753, 754 (Utah 1977). A case often pointed to by the courts as an example of a showing of appreciable time is one in which there was spilled spaghetti in the aisles of a grocery store. In that case, the plaintiff was successful in meeting this burden because the produced evidence that the spaghetti "was dirty, crushed, broken into small pieces, and extended from [one] aisle around the end of that aisle to the main aisle [of the store] for five or six feet toward the cash register at the front of the store. See Ohlson at 754.
In contrast, the courts point to the case of Jex v. JRA, Inc., 2008 UT 67, 196 P.3d 156, as an example of a plaintiff who was unable to meet the appreciable time showing. In that case slipped on a puddle of water in the store. The plaintiff produced evidence that she was the first customer in the store that morning and the fourth person to walk into the store on the morning of the incident. To prove that the defendant had adequate notice of the condition, the plaintiff relied on the fact that the defendant's employees had shoveled snow that morning and wore boots with deep treads, arguing that the employees had likely tracked the snow into the store. The court, however, held that the plaintiff did not provide sufficient evidence as to the amount of time the unsafe condition existed. Jex at19.
As a result of the foregoing decisions, it is easy to see that the initial and most vital inquiry in such a case focuses on how long the hazard existed. Therefore, the facts existing at the time of the fall are very important. If possible, it is very helpful to have photographs of the condition of the items that caused the fall and the premises in general. It is important to note their position on the ground. It is also important to gather witness statements from anyone who may have seen the fall or been in or on the premises immediately prior to the fall. Another helpful item is to gather any inspection logs or reports kept by the landowner to indicate when the last time sweeping or any other cleaning was done. All of these facts are important and will make or break a slip and fall case. If you have any questions about this or any other laws concerning your slip and fall case, please give us a call at (435)753-4775 or visit us at http://www.ericsonshaw.com.
Friday, February 10, 2012
Utah Worker's Compensation Laws
Utah Code Section 34A-2-401 allows an employee who is injured in an accident arising out of and in the course of the employee's employment to recover compensation for the losses sustained as a result of that injury. What is important to understand is how the terms 'arising out of' and 'course of employment' are defined, especially for those who have preexisting medical conditions. The courts have determined that the language in that statute "was intended to ensure that compensation is only awarded where there is a sufficient causal connection between the disability and the working conditions.” Allen v. Industrial Comm’n, 729 P.2d 15, 24–25 (Utah 1986). The court requires proof of both 'medical causation' and 'legal causation.' Such proof is required in order to prevent employers from having to be insurers for all of their employees' injuries, and to limit their liability to only those injuries caused by the employee's actual employment.
It is important to note that an injury is not always compensable just because it occurs at the workplace. If an employee has a preexisting condition, they must show that some condition or exertion required by the employment increases the risk of injury which the worker normally faces in their everyday life. Allen at 25. Typically, the employee has to show the employment contributed something substantial to increase the risk he already faced in his every day life. Id. This can be done by showing that the injury was precipitated by an "unusual or extraordinary exertion." Id. at 25-26. A determination of what is 'unusual exertion' is based on a general expectation of nonemployment activities, like taking out the trash, lifting and carrying luggage for travel, climbing stairs, lifting a small child, etc.
As a result, if you have been injured at work and that injury arose out of the course of your employment your employer is required to compensate you for an injuries sustained as a result thereof. If you have any questions in this regard, please contact us at (435)753-4775 for a free consultation or visit us at http://www.ericsonshaw.com.
It is important to note that an injury is not always compensable just because it occurs at the workplace. If an employee has a preexisting condition, they must show that some condition or exertion required by the employment increases the risk of injury which the worker normally faces in their everyday life. Allen at 25. Typically, the employee has to show the employment contributed something substantial to increase the risk he already faced in his every day life. Id. This can be done by showing that the injury was precipitated by an "unusual or extraordinary exertion." Id. at 25-26. A determination of what is 'unusual exertion' is based on a general expectation of nonemployment activities, like taking out the trash, lifting and carrying luggage for travel, climbing stairs, lifting a small child, etc.
As a result, if you have been injured at work and that injury arose out of the course of your employment your employer is required to compensate you for an injuries sustained as a result thereof. If you have any questions in this regard, please contact us at (435)753-4775 for a free consultation or visit us at http://www.ericsonshaw.com.
Monday, February 6, 2012
Personal Injury FAQs
If you have recently been injured and are looking for a personal injury attorney, below are some answers to some frequently asked questions:
What will it cost for me to hire an attorney?
There are no out of pocket costs for the client on personal injury case. You will not owe any fees to your attorney unless he is able to recover money for you. Should your case require litigation, the costs for that litigation may be taken out of your ultimate recovery amount.
How does my attorney get paid?
Your personal injury case will be handled on a contingency fee basis. What that means is that once a settlement is reached, your attorney will take a percentage of that settlement. Most firms will require that you are paid between 33% and 40% of the settlement proceeds. Ericson & Shaw understands that the many times the settlement funds are necessary to reimburse you for your costs and damages caused by the accident. What many lawyers don’t want you to know is that settlements can often be reached through negotiations with an insurance company and that the time and effort of litigation is rarely necessary. Many firms may take 40% of your settlement after doing very little work on your case. As a result, Ericson & Shaw will typically only requires a 25% contingency fee if your case settles without litigation. Should your case require litigation, the contingency fee amount is increased to 33% as a result of the additional time and work that results from litigation.
How involved am I in the settlement process?
Attorneys are obligated to inform you of any and all settlement offers from the opposing parties. Even if your attorney believes that the offer is insufficient, he must allow you an opportunity to accept or reject the offer. While your attorney may have a financial stake in your settlement, you ultimately have the final say as to whether to accept any and all settlement offers.
Will I receive all of my settlement funds?
One important thing for you to remember is that all of your medical bills, including those paid by any health insurer (including Medicare and Medicaid) must be paid out of your settlement amount. Utah Law allows all health insurers to lien your recovery amount. This means you cannot have access to your settlement funds until your health insurance provider is reimbursed for any and all payments they made as a result of your accident. This will obviously decrease the amount you will take from your settlement. As a result, these amounts must be considered when determining whether to accept a settlement offer. Many attorneys fail to inform their clients of these liens. Ericson & Shaw has been very successful in the past at negotiating with the insurance companies to decrease, and many times waive any liens they may have against a potential recovery, therefore maximizing the payout for their clients. Be sure to make your attorney aware of all medical treatment that you have received and any and all health insurance that may have been in place at the time of your accident.
How do I determine how much I may be entitled to recover?
You are entitled to recover any and all damages that were caused by the accident. This may include, all medical costs of any kind (including chiropractor costs, physical therapy, rehabilitation and prescriptions), the costs of any and all future medical treatment that may be necessary, lost wages, property damage, rental car, travel costs, and other intangible damages such as decrease in life style and emotional distress.
What things should I consider when deciding whether to accept a settlement offer?
The most difficult part of any personal injury case is placing a dollar value on your damages. In a court of law, the burden of proof is on the plaintiff to prove their damages by a preponderance of the evidence. Therefore, some damages are easier to prove than others. While it is very simple to put a dollar value on the out of pocket costs and medical bills, it is very difficult to assign a dollar value to other damages such as emotional distress and a decrease in lifestyle. Therefore, the first consideration is to put a realistic dollar value on your case. The first thing that the attorneys at Ericson & Shaw will do is sit down with you and discuss your expectations and help you determine the value of your case.
Once you have determined the value of your case, it is also important to consider the amount of insurance liens as well as the attorney’s fees. You need to be able to calculate and understand what your portion of your settlement will be. Another factor to consider is whether you are willing to see your case all the way through the litigation process. The attorneys at Ericson & Shaw are experienced litigators and will aggressively litigate your case. However, it is important for you to understand that the litigation process can take over a year to make its way through the court system to trial. That litigation process will also lead to additional costs and fees. Finally, the last factor to consider is the likelihood of prevailing at trial. While very few personal injury cases make their way to trial, it is important to understand that there is always, at least a small risk of not prevailing at trial or receiving an amount under your expectations. Ericson & Shaw will thoroughly discuss all of these factors with you so that you can make an informed decision when approaching settlement negotiations with the culpable party or their insurance company.
Why hire an attorney for my personal injury claim?
An attorney can maximize your recovery. In addition, an attorney can help to ensure that all of the insurance liens are satisfied and your needs and obligations are met and that you are fully compensated for your damages.
If you have any additional questions, or would like assistance with your personal injury claim please give us a call at (435)753-4775. Or visit us at http://www.ericsonshaw.com
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