Scott M. Kuboff, Esq.
Northeast Ohio Trial Attorney

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Posts tagged negligence per se
Overcoming Ohio's "No Duty" Winter Rule

If you didn’t notice the parking lot on I-271 or I-480 this morning, winter is here.   As the conditions become slick due to the snow, ice, and slush, it is not uncommon that individuals to sustain significant injuries in slip and falls.  

In Ohio, there is a “no duty” winter rule which comes into play in – you guessed it – winter; and ill typically apply in falls in parking lots, entryways, and sidewalks, to name a few.   However, this “no duty” winter rule does not foreclose an injured individuals ability to recover.   

Before I discuss the winter rule, remember that when the alleged negligence occurs in the premises-liability context, the applicable duty is determined by the relationship between the landowner and the injured party.  Ohio adheres to the common law classifications of invitee, licensee, and trespasser.  An “invitee” is one who enters the premises of another by invitation for some purpose that is beneficial to the owner or occupier.  A “licensee” person who enters an owner’s premises, with permission or acquiescence, for personal benefit.  A “trespasser” is one who enters property without invitation or permission, purely for his or her own purposes or convenience.  

Usually, the injured party is an “invitee” as he or she was injured in a store parking lot or entryway.   In such cases, the owner owes the injured party a duty of ordinary care to maintain the premises in a reasonably safe condition and to warn them of hidden dangers. Additionally, the owner must also inspect the premises to discover possible dangerous conditions of which he or she does not know, and take reasonable precaution to protect the invitee from dangers which are foreseeable from the arrangement or use.

However, in ice and snow cases, the winter rule says “no liability will attach to the occupier of premises for a slip and fall occurring due to natural accumulations of ice or snow, these being deemed open and obvious hazards in Ohio's climate, from which persons entering the premises must protect themselves.”   Thus, in Ohio, a property owner has no duty to remove natural accumulations of ice and snow from private driveways, walks, and steps on the premises. “Natural” accumulation is created by meteorological forces of nature including low temperatures, strong winds and drifting snow.   Conversely, “unnatural” accumulation is caused by the intervention of human action doing something that would cause ice and snow to accumulate in unexpected places and ways or, in other words, man-made conditions.

There are, however, common-law exceptions to the winter rule.   The first exception to the winter rule is where a property owner is actively negligent in creating or permitting an unnatural accumulation of ice and snow.  The second exception to the winter rule is where the property owner has been shown to have had notice, actual or implied, that a natural accumulation of snow and ice on his premises has created a condition substantially more dangerous than what the business invitee should have expected in light of generally prevailing conditions, negligence may be proven.   If an injured party can show either exception applies, he or she can prevail and recovery for their injuries.    As such, it is advisable to speak to an attorney immediately following any unfortunate fall.

In addition to the above exceptions, an injured party may also be able to recovery under a theory of negligence per se if there was a statute or ordinance which requires the removal of snow and ice.  Generally speaking, if a statute or ordinance imposes a specific duty on the property owner to keep the their property in good repair, his or her failure to do so may be actionable.   Here is an example of a local ordinance which could provide an avenue to recover for your injuries: 

No owner or occupant of lots or lands abutting any sidewalk, curb or gutter shall fail to keep the sidewalks, curbs and gutters free from snow, ice or any nuisance, and to remove from such sidewalks, curbs or gutters all snow and ice accumulated thereon within a reasonable time, which will ordinarily not exceed 12 hours after any storm during which the snow and ice has accumulated.  

Some municipalities have similar ordinances, others do not.   As such, if you have been injured as a result of a slip and fall, please contact Scott for a no cost, no obligation consultation and case evaluation.

How to Protect Yourself BEFORE a Bicycle Accident

For cyclists, this week served as yet another painful reminder of the vulnerability that we face every time we roll out onto the roadway and the catastrophic harm that can be caused for ourselves and our families.   While I trust most cyclists are careful, it is the distracted driver, the impatient driver, or the drunk driver that we have to worry about.   Their actions (and reactions) are completely out of our hands.  

I previously posted an article titled “What to do if You’re Involved in a Bicycle Accident” which you should check out first.   What that article does not address is the steps you should take before an accident happens to protect yourself and your family afterwards.   In other words, buy as much insurance as you can reasonably afford.  While this is not a comprehensive discussion on the issue of insurance, or the available types, here are a few types of insurance that you should absolutely have if you’re a cyclist:   

  • Life Insurance:         Kalamazoo, MI.  West Baltimore, MD.  Brooklyn, NY.  Brecksville, OH.   The list can go on.   Purchasing a life insurance policy will provide your family some semblance of financial security in the event tragedy strikes and will compensate, at least for a time, the shortfall of income resulting from your loss.
  • Disability Insurance:             It is not difficult to understand that, even if you are fortunate enough to survive a bicycle accident, your injuries may be catastrophic and leave you disabled.   If you are no longer able to work and earn an income to support your family, disability insurance will help you stay afloat by providing monthly payments during the period as set forth in the policy.   A short-term policy usually is for payments less than one year whereas a long-term policy can vary but may be as long as until you reach a retirement age. 

Life insurance and disability insurance are two types of policies that are wise to have as they provide financial support for injuries that go beyond a bicycle accident (i.e. major health issue or some other type of injury) and, more likely than not, have no relation to fault for the injury.   

For a motorist in Ohio, the law requires that they have at least $25,000/$50,000 in coverage.   This means that the policy limit per individual is $25,000 and the policy limit per occurrence is $50,000.   For example, even if your damages exceed $25,000, the insurance company is only required to pay $25,000 leaving you holding the bag for the rest.   What if a motorist plows into a pack of cyclists?  Splitting up $50,000 among all injured parties would be woefully inadequate to compensate them for their injuries.   Worse yet, what if the motorist has no coverage at all.

One way to protect yourself is to insure that you have uninsured motorist coverage (UM) and underinsured motorist coverage (UIM) on your own auto policy.   DO NOT remove it to save a few dollars on your monthly premium.  Here’s how it works:

  • Uninsured Motorist Coverage (UM):     UM coverage comes into play if the motorist does not have any insurance at all.    Unfortunately, this is all too common.   In this event, you can make a claim against your own insurance policy for your damages.  If you purchased a $100,000 UM/UIM policy, this means you can recover up to $100,000.
  • Underinsured Motorist Coverage (UIM):             UIM coverage comes into play if the motorist does not have enough insurance to compensate you for your injuries.   Let’s assume that a motorist’s policy is $25,000/$50,000.    You have a $100,000 UM/UIM policy.   In this case, you will be able to recover up to the difference between the two policies under your UIM policy (i.e. $25K from driver and $75K from UIM).   If your UIM coverage equals the motorist’s coverage (i.e. both 100K policies) you cannot claim UIM coverage.  A NOTE OF CAUTION:  If the motorist’s carrier tenders the policy limits and you accept without notifying your UIM carrier, you may very well foreclose your claim for UIM coverage.   As such, it is important to read your policy and consult with an attorney before making such decision.   

Finally, if you own a home, consider purchasing an umbrella policy to go along with your home and auto insurance.   Most policies provide a minimum of $1,000,000 in coverage and do not cost more than a replacement tube per month. 

If you have sustained an injury in a bicycle accident, please contact Scott for a no cost, no obligation consultation and case evaluation. 

Negligence Per Se: Another Road to Recovery

You were injured through no fault of your own.   Someone else’s actions – or their failure to act – caused you harm and significant pain, suffering, and loss.   In most cases, your personal injury claim will be based upon a theory of negligence.  In order to establish a claim of negligence, you must show

(1) the existence of a duty;

(2) a breach of a duty;

(3) an injury; and

(4) that your injury was caused by the breach of duty.

The existence of a duty – which is a standard of due care for the protection of others – can be found in (1) case law or common law (i.e. created by the courts), (2) consideration of the facts and circumstances of a particular case, or (3) by legislative enactment of a statute.     

A general negligence theory is usually based upon common law and consideration of the facts and circumstances of your case.  However, where there is a statute which either requires or prohibits specific conduct, an injured person has another road to recovery: Negligence Per Se.

Legally speaking, where a statute imposes upon any person a specific duty for the protection of others, and he violates the statute which proximately results in injury to another person, he is negligent per se.   For example, in Ohio, there are statutes and municipal ordinances that requires drivers to stop at red lights.   If a driver runs a red light, and causes an accident, he is negligent per se.  

Negligence per se is important as it can be much easier to convince a jury that someone should be responsible for your injuries if you can show that he violated a clear-cut statute compared to establishing general negligence which requires determination and weighing of facts and circumstances.

However, not all statutes can be used for a negligence per se claim.   First, you must be a “member of the class” that the statute seeks to protect.   In one case, an individual was injured from falling in a hole in an unpaved parking lot and sought to impose negligence per se by using a statute which required the owners of such lots to prevent dust and dirt from being kicked up when cars drive upon it.  Suffice it to say, the statute had nothing to do with protecting people from falling in holes.    Compare that case to an individual who was injured by a person running a red light; the red light statute was created to protect other motorists.   As such, in the red light case, the injured person is a “member of the class” for which the statute seeks to protect. 

Next, you have to determine if the statute is expressed in general terms or specific terms.  If the statute expresses, in general terms, conduct for the safety of others, negligence per se cannot be applied.  However, an injured person could still proceed on a negligence theory.   However, if the statute commands or prohibits specific conduct for the safety of others and there is a violation of that statute, such violation constitutes negligence per se.

If you have been injured by the negligence of another, please contact Scott for a no cost, no obligation consultation and case evaluation.