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Today I’ll share some common defense lawyer strategies that you’ll see if you’re trying to settle a premises liability claim in New York State. 

What I’m going to write about are some of the more common ways that defense lawyers and insurance companies will try to defend themselves and avoid responsibility for paying out on claims where somebody’s injured on the property. 

What Is A Premises Liability Claim?

When you’re hurt on somebody else’s property, courts will call these cases premises liability claims. When lawyers talk about premises cases, we’re usually focusing on some sort of problem with a building, stairway, or a walkway. 

When the courts talk about these problems, they call them defects. 

For many years, the courts would say that if a defect was open and obvious, you can’t recover anything for your injuries. 

In other words, if the average person could see something and avoid it, then they can’t make out a personal injury claim. Strangely enough, over time, this led to situations where property owners would take a small defect and make it bigger so that it was more obvious and people couldn’t bring injury claims. 

But eventually, the courts said that property owners and managers have to take these defects and fix them. And what happened over time is that courts began to evolve the kinds of questions that they asked in these cases. 

And so now we see that courts will ask two questions: 1) Is a defect open and obvious and 2)  is it also inherently dangerous? 

The ‘Inherently Dangerous’ Defense

Generally speaking, inherently dangerous means that even if you’re on the property, or using the property in the way that it’s intended and being careful, there’s still a real risk of being injured. 

It’s perhaps easier to give you examples of things that courts have considered to be not inherently dangerous. 

Examples Of The ‘Inherently Dangerous’ Defense

For example, in one recent case, a woman tripped and fell over a step while entering the vestibule of an art gallery. It turns out she had walked in and out of the art gallery earlier in the day without any kind of problem. The court said this is not an inherently dangerous condition. 

In another recent case, somebody tripped over a chain that was used to secure entry into a driveway. The chain was about 15 to 20 feet long and attached to three-foot-high posts on either side. And while it sagged in the middle to about 12 or 14 inches over the ground, the person tripped over it anyway. And in this case, the court said the condition was not inherently dangerous and dismissed the case. 

So when it comes to open and obvious and inherently dangerous conditions, the takeaway is that, just because you’re injured on somebody’s property, it doesn’t mean that recovery is guaranteed, especially if it’s a condition that can be seen and avoided by the average person. 

The ‘Trivial Defect’ Defense 

The next category of defense to consider is what’s called the trivial defect. “Trivial defect” is the court speak for, “Are you kidding me? This is way too small for us to care about. We can’t have people suing over every little thing.” 

In other words, you can’t hold people to this standard. We can’t expect them to fix everything. And this is a subjective standard when it comes to court cases. It’s in the eye of the beholder. 

At the bottom, what we have are courts making what are public policy decisions about what kinds of things they’re going allow to happen. 

Example Of The Trivial Defect Defense

For instance, in a case where somebody caught their foot under a bench leg in a mall, the court found that this was too trivial a defect to allow the person to sue. 

On the other hand, in a different situation, another court did allow a woman to bring a case where she got her foot caught in a hole next to a sidewalk grate. Here, the court thought that it was important that this was a heavily traveled walkway in a place where people aren’t typically looking at their feet while they’re walking. 

How Is A Defect Determined To Be Trivial?

In any particular case, it’s just too difficult to know in advance whether a court is going to decide that a defect is too trivial to allow the case to go forward. What we do know is that courts must, and do, look at all of the circumstances. The height, size, depth, width, color, shape, and everything that matters is going to be considered by the court when deciding if a defect is too trivial. 

What this means for the injured person is that you must do your best to get photographs and good quality color photographs from a bunch of different angles of the defect if you want to bring a court case. There must be some hard evidence. Testimony alone is often not going to be good enough to allow a premises liability case to go forward, especially if the defense raises the trivial defect defense. 

The ‘Assumption Of Risk’ Defense

Finally, our third defense is the assumption of the risk. This is the court’s way of blaming the victim. Assumption of the risk is a way for the courts to say, you should have known you were going to get hurt, and now that you did get hurt, we’re not going to let you sue. 

This rule is typically applied to sporting events and recreational activities. And it’s not just for participants. If you involve yourself in an activity that you know or should know has some dangers associated with it, whether it’s by playing, watching, or participating in any way, the assumption of the risk doctrine may apply to you. 

And just by participating, you assume the risk of anything that can happen, even if it’s not a risk that you would’ve anticipated. 

Examples Of The Assumption of Risk Defense

Here are some examples from recent court cases that illustrate the point. In one case, a woman was going tubing. She was injured while she was walking down the path to the river carrying the tube. 

A sign had been posted that said, “You assume the risk of danger, even death, by participating in water-related activities here.” In this case, the woman and her lawyer claimed that while she may have assumed the risk of anything that could have happened to her on the river, she certainly didn’t assume the risk of getting hurt while walking to the river on the path. 

Well, the court disagreed and said, nope, you do assume the risk of getting to the activity, whether you thought you were going to get hurt or not. And her case was dismissed. 

In another case, somebody was injured at a competitive target shooting event at a gun range. Here the court also said that you assume the risk of getting shot if you’re participating in an event at a gun range. 

Courts sometimes seem to come to different results in different cases, so it is hard to predict exactly which way a court will go ahead of time. Just know that any time you participate in an activity that seems fun and you get hurt, there’s a good chance that the defense will try to apply the assumption of the risk doctrine. 

So these are three of the common defenses you might see if you have a claim in New York based on premises liability. I hope you find the information helpful.