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Tonight is the night that you might have lots of little ones visiting your front door to get candy.  Halloween is a wonderful time of year.  However, what most people do not think about is that when the trick or treaters come  onto your property, you could potentially be held liable for any injuries they sustain.  If your porch light is on and you welcome the children to the front door, the children are considered invitees.  This is a legal term which increases the risk of liability for a homeowner.  Because of this relationship, the homeowner owes the candy seekers the level of “reasonable” care that falls under ordinary negligence. Failure to do so can subject the homeowner to legal liability.  Examples of this would be injury caused due to the failure to warn of a loose brick or an unstable railing.

There are a few things you should do to protect yourself in preparation for your small guests:

• Make sure there is a clear path from the street to your door. Make sure there is enough space for people to walk.
• Have the area well-lit, especially where steps are involved.
• Don’t have any hazards in the way, such as wires, hoses or other objects that a child could trip over.

Make sure your homeowners or renters policy has enough liability and medical coverage. We recommend having at least $5,000 in Medical Payments Coverage and having at least $300,000 for liability.  If someone sues you or there is a monetary judgment against you due to an incident, your homeowners’ insurance policy should cover your costs of an attorney and the amount of any settlement or judgment.

Have fun tonight and stay safe! 

Talk to your teens about the risks involved in driving other people’s vehicles. In my practice, I see teens letting their friends drive their cars and then getting into accidents. Some teens believe that if they cause an accident while driving their friend’s car, they will not be responsible because the car is insured. This is not always the case. In general, your child (and your auto insurance) will be primarily responsible If your child causes injury to someone while driving someone else’s car.

I get many calls from people seeking compensation against a doctor or other health care provider for medical malpractice or negligence.  Common scenarios are failure to diagnose an illness, mistakes made during surgery, or failure to properly treat an illness.

Some callers are frustrated because they cannot find an attorney willing to take their case.  Just because an attorney will not take your case does not necessarily mean that you were not wronged or harmed.  It could mean that the damages you suffered are not severe enough to make the case economically viable.

Under Ohio law (and many other states), there is a cap on non-economic damages for medical malpractice arising out of acts or omissions of a medical provider. Non-economic damages are more commonly referred to as damages for “pain and suffering.”  The basic cap is the larger of $250,000 or three times economic damages, subject to a maximum of $350,000 per plaintiff and a maximum of $500,000 per occurrence. These maximum amounts increase to $500,000 per plaintiff and $1 million per occurrence if the plaintiff has suffered permanent and substantial physical deformity, loss of use of a limb, loss of a bodily organ system, or permanent physical injury that prevents self-care. Ohio Rev. Code Ann. § 2323.43. This law was enacted in order to protect medical professionals from exorbitant jury awards.

What this means is that a plaintiff is seriously limited in the amount of compensation he or she can recover against a medical provider unless there has been permanent and substantial physical deformity (i.e. severed limb) or death.  Knowing that plaintiffs must overcome this hurdle, hospitals and doctors are more likely to take cases all the way to trial rather than settle them out of court.  These providers and their attorneys know that the cost of taking a case all the way through trial will often not justify the eventual award.  A plaintiff and his or her attorneys run the risk of getting no recovery whatsoever after litigation costs and medical bills are paid off.  In other words, the ends do not justify the means.  Clients will end up with very little money in their pockets, and will be disappointed.

The result is unfortunate for people who have been harmed by doctors or health care providers, but have either recovered or not suffered what the courts consider “permanent and substantial physical deformity.”  Often, clients will ask “so, the doctor can just get away with this?”  The answer is yes and no.  Doctors and health care providers can always be reported to the various licensing boards that oversee their activities.  There may be an investigation and subsequent discipline or loss of license.  However, in answer to the question of whether the doctor/medical provider can avoid paying compensation to an injured plaintiff based upon the laws that support the medical profession, the answer as of now is yes.

Anything that is both attractive and dangerous to curious children can be considered an attractive nuisance, making you potentially liable in the event that these objects cause an accident.

Common attractive nuisances include farm equipment, unguarded swimming pools, open pits or holes, abandoned appliances, old vehicles, manmade features and trampolines.

The logic is that even if a child trespassed on your property, you might still be liable if you failed to take necessary steps to prevent the accident. Here are some ways to minimize your liability:

Prevent Access — Install secure, high fences and locked gates to prevent easy access to the nuisance.

Safeguard Discarded Dangers — Remove doors and lids from old household appliances that pose a suffocation hazard.

Lock Parked Vehicles — Always keep the doors, hatches and trunks of parked cars locked with windows, sunroofs and convertible tops closed.

Protect Work Sites — Enclose work sites in safety fencing to keep curious children out and away from tools and building hazards.

Enclose Open Hazards — Pay particular attention to drainage ditches, excavation trenches, wells, cisterns, holding tanks, and open pits where children may fall and become trapped.

Minimize Attractiveness — Hide the nuisance behind fences or hedges. This is especially important if your home is located near where children play.

Secure Play Things — Don’t assume structures designed for kids are hazard-free. Lock down skateboard ramps, trampolines, jungle gyms, playsets and tree houses.

It’s a winter day in Northeast Ohio and you’re walking on what appears to be clear ground. Then, suddenly, your feet slide out from under you on “black ice” and you fall and break your wrist.

Who’s at fault? Can you sue for your damages and injuries?

Under Ohio law, there is generally no recovery for injuries caused by a slip and fall on a natural accumulation of ice and snow. The courts have held that if you live in the region, you should be aware that black ice could potentially be anywhere.

However, where a landlord contractually agrees to remove ice and snow and does not do so, then the landlord may be liable. For example, many shopping center and office building leases provide that the landlord is responsible for removing ice and snow. Some courts have held the landlord responsible for failing to do so, and you may sue for your injuries and damages.

Where there is an unnatural accumulation of ice and snow, then the property owner may be legally liable for injuries caused by that ice or snow. Examples include pavement defects which allow water to accumulate and then freeze, drainage pipes which cause an unnatural flow into an area; and down spouts which do the same.

Failure to provide appropriate guard rails on exterior stairs or ramps, which the property owner has reason to know will become slippery or icy in winter and become hazardous to users, may make the owner or tenant in control responsible for your injuries.

Open manholes or gratings which are in a walkway and covered by snow may create liability where the property owner knew or should have known of the concealed hazard and failed to warn pedestrians.

Condominium Associations and others responsible for the maintenance of common areas may also be responsible for their failure to keep these areas free of ice and snow, where the By-Laws give them responsibility for doing so.

Recovering for injuries on ice and snow is difficult in this region. The facts of each case are different and require expert evaluation. Please call us to answer any questions you may have regarding injuries you sustained from slipping and falling on ice or snow.

Premises liability is a legal concept that typically comes into play in personal injury cases where the injury was caused by some type of unsafe or defective condition on someone’s property.  The most common type of premises liability cases we see are “slip and fall” accidents.  Whether it be slipping on grapes in a grocery store, falling from stepping in wet cement, or tripping on an item left on the floor in a store, these cases have become very difficult to win.  The law favors property owners in these types of situations.

Most personal injury cases are based on negligence, and premises liability cases are no exception. Many clients believe that if they were injured on someone else’s property, the property owner is automatically liable. It is important to note that simply because you were injured on someone’s property does not mean that the property owner was negligent. Further, simply because the property might have been in an unsafe condition does not automatically mean that the property owner was negligent.

In order to win a slip and fall case, the injured person must prove that the property owner failed to use reasonable care in connection with the property.  The plaintiff must prove that: (1) the owner was on notice of a dangerous or defective condition; and (2) that the owner failed to remedy the situation or to warn of the danger.

Insurance companies have used this requirement of “notice” to avoid paying premises liability claims.  In fact, I have yet to see a case where an insurance company accepted liability for such an accident.  In order to prove that the property owner was on notice, the Plaintiff must present evidence that the owner knew of the condition, but did nothing about it. It is often difficult to locate any such evidence, absent an admission from an employee.

Ohio courts have also held that a property owner is not liable for an injury if the dangerous condition was “open and obvious.”  This means that if the dangerous condition is considered one which the typical person would see in advance, the property owner will not be liable for the injury.  I have found that insurance companies use the “open and obvious” defense to deny liability on claims even where the dangerous condition was not necessarily easy to see (i.e. a hole in the ground or a spill on the floor).

While premises liability cases are difficult to win, they are not impossible.  With that being said, there must be some reasonable basis to argue that the condition that caused the injury was not easy to see, that the owner knew about it, and that the owner did nothing to remedy the situation.

As a former insurance defense lawyer, I have read so many insurance policies, I can quote most of the exclusions in my sleep.  For most consumers, however, the insurance policy seems overwhelming to read.  It is important to always read your insurance policy. However, if you do not have the time or desire to read your entire insurance policy (whether it be homeowners or auto), you should at least make sure to determine the following:

5 Important Rules for Reading an Insurance Policy

1. Determine who qualifies as an insured:  You want to make sure that the people who you believe are covered are in fact covered.
2. Read the exclusions:  Sometimes it seems like an insurance policy excludes more than it covers.  It is important to know what is excluded from coverage. This way, you can purchase additional coverage if you think you might need it.
3. Read all Endorsements: Endorsements are forms added on to a policy which will change or modify coverage.  You will sometimes receive Endorsements in the mail when you renew a policy.  It is important to know whether an Endorsement affects your coverages.
4. Read and understand the definitions of specifically defined terms: Definitions in insurance policies mean everything. The insurance company may be defining a term in a way that has a completely different meaning than you think it does.
5. Confirm the coverage limits are adequate for the loss:  This is critical. Too many times, I’ve seen clients get in accidents or get sued and not have enough coverage to compensate the injured party.  Often, just a small increase in premium would have provided the client with the coverage they needed.  If you are not sure how much coverage you need, talk to a qualified attorney or insurance agent.
   

While the above items are important to read, remember that there is no shortcut to reading any legal document.

Many clients believe that once they hire an attorney, the attorney is bound by law to represent them zealously until the case is concluded.  This is true to an extent.  Before a lawsuit is filed, an attorney may actually terminate his/her relationship with a client for any reason or no reason.  As long as the client is notified in writing and properly advised as to how to proceed, an attorney is not bound to a client.

However, the relationship changes somewhat where a lawsuit has been filed.  In such cases, an attorney must seek court approval before terminating a relationship with a client. This is done by way of a Motion to Withdraw, and must be based on “good cause.”  The client must be served with a copy of the Motion by certified mail.

Good cause has been shown in situations where a client fails to cooperate with his/her attorney (including failing to respond to phone calls, e-mails, or letters), a client fails to pail his/her legal bills, a client is untruthful with his/her attorney, or where the attorney and the client have a fundamental disagreement as to the handling of the case.

I was recently forced to file a Motion to Withdraw in a case where my client would not return phone calls, e-mails, texts or letters.  This went on for several months.  Indeed, without the client’s cooperation, I was unable to adequately respond to discovery requests on his behalf, or to properly litigate the case.  Much to my client’s disappointment, my Motion was granted.

Before hiring an attorney, it is important for a client to know that in a lawyer/client relationship, not only the lawyer is bound to fulfill certain duties.  The client also owes duties to his/her attorney.  Such duties and responsibilities include being:

• Truthful with your lawyer
• Cooperative with and responsive to your lawyer
• Available to your lawyer and attending legal proceedings, as requested
• On time with paying your legal bills in a timely manner

These duties and responsibilities may be implied even without a retainer agreement that expressly commits them to writing. In fact, a failure to comply with any of these duties may result in a lawyer terminating the relationship.

The Ohio Statute of Limitations for legal malpractice is one year, but the statute can be tricky.  A question that always arises is in these cases is when the one-year countdown begins to run.  Many people who suffered harm from their attorney’s actions or inaction and who wish to file a lawsuit against their attorney for legal malpractice may be disappointed to learn they waited too long.

A “statute of limitations” is a law that identifies the maximum amount of time, usually a number of years, a person can wait before filing a lawsuit.  If a person files a lawsuit beyond the time identified in the statute of limitations, that person runs the risk of having his or her lawsuit dismissed.  Think of the statute of limitations as a countdown before someone’s potential lawsuit expires.  The idea behind a statute of limitations is that people cannot reasonably be expected to defend themselves after so much time has passed because evidence may be destroyed, memories fade, and it becomes very difficult for a court to determine what really happened.  On the other hand, people who have been harmed should have enough time before filing a lawsuit to realize they’ve been somehow harmed, to figure out whether or not they have a good case, and to discover who the responsible parties are.

The Ohio statute of limitations for legal malpractice begins to run when either of two events occurs.  If both events occur, it is the later event that starts the statute of limitations running.

One event that begins the countdown is when the client made or should have made the connection that the harm he or she suffered is related to something his or her attorney did or did not do.  Sometimes, but not always, clients should make this connection immediately when they experience the harm, like perhaps when the client loses his or her case.  Sometimes however, because the legal process or the law itself is so complex, clients are not expected to have made this connection until they discover later on something that their attorney did or did not do which, for example, led to the client ultimately losing his or her case.

The other event that begins the countdown or statute of limitations to run on a legal malpractice lawsuit is when the attorney-client relationship ends.  Often, the end of an attorney-client relationship is easy to determine because attorneys will send a letter to the client indicating that their relationship has ended.  In any case, for an attorney-client relationship to end, either the attorney or the client typically must do something that shows they behaved in a way that goes against how an attorney and a client usually behave towards one another.  For example, a client might meet with another attorney on the same matter.

The best way to make sure the Ohio statute of limitations for legal malpractice does not doom a legal malpractice lawsuit is to contact a legal malpractice attorney as soon as the client discovers his or her current attorney may have done something wrong.  Also, so that it does not become too late to file a legal malpractice lawsuit, clients should contact an attorney who is experienced in handling legal malpractice cases, like Roni Sokol of The Sokol Law Firm, because they are likely to understand the ins and outs of the statute of limitations.