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A Guide to Homeowners’ Liability for Injury to Trick or Treaters

Young Child Standing at House Trick-or-Treating on Halloween

Halloween pranks. Google this phrase and more than 5 million results link you to a myriad of ways to “mess with peoples’ minds” on Halloween. Some of the recommended pranks require a higher education to understand; some ideas are, well, strange; but some pranks are meant to do one thing – scare people (mainly kids). When kids and adults get scared, they do strange things, and sometimes they get hurt, or hurt someone else.

This is not intended to take the pranksters’ fun out of Halloween. Rather this is a review of the legal liability placed on those who set out to scare the little candy beggars coming to doors this evening. Even if you (or your clients) don’t intend to scare or “trick” the neighborhood kids, could you face legal liability for any injury occurring on your property because of your (or your client’s) “relationship” with the trick-or-treaters?

Legal liability is liability imposed by the courts through common law or by statute on any person or entity responsible for the financial injury or damage suffered by another person, group or entity. If you (or one of your insureds) is found legally liable for an injury, will the homeowners’ policy cover the loss?

There are three requirements that must be met to be held legally liable: 1) negligent conduct; 2) actual damages; and 3) the negligent conduct must be the cause of the injury. When all three tests are met, the person (“natural,” “unnatural” (since this is a Halloween piece) or “legal”) is considered legally liable for the injury and must pay the costs of all damages.

When the porch light is on, trick-or-treaters are considered invitees; the homeowner is inviting them onto the property (though not for a mutual benefit). Because of this relationship, the homeowner owes the candy seekers the level of “reasonable” care that falls under Ordinary Negligence.

Even if the homeowner is not planning on scaring the kids, he/she must warn about the loose brick or cracked sidewalk, fix the hazard or protect the invitees from unrepairable hazards.

If the porch light is off, the same level of care is not required. The homeowner has not invited the kids onto his property to get candy. To breach a duty to what are now trespassers the homeowner must be grossly negligent. However, since kids are involved, the duty of care may fall in between Ordinary Negligence and Gross Negligence.

Depending on the facts surrounding the injury, the homeowner who endeavors to prank the kids or fails to protect the kids from known hazards may have breached his duty owed. If such breach does occur, the homeowner has taken the first step towards being found legally liable.

Damages

If negligence is proven, legal liability next requires showing that the injured party suffered actual damages. Remember, insurance responds to financial loss only, so these damages must be couched in monetary terms.

Actual Cause of the Injury

Once negligence and actual damages are proved, the last step towards establishing insurable legal liability is determining whether the act is the actual cause of the harm. Several legal theories combine to judge causation and establish legal liability; these are: cause in fact; proximate or legal cause; and intervening acts and superseding events.

The basic premise of the cause in fact rule is: without the actions of the supposed at-fault party there would be no injury or damage. The inverse question is, “If the wrongdoer’s act or omission is eliminated, would the injury or damage have occurred anyway?”

Proximate or “legal” cause is the legal theory used to limit the scope of the wrongdoer’s liability for injury arising out of the cause in fact. Proximate cause applies when there is no question that the injury or damage would not have occurred but for the actions or inactions of the wrongdoer (the cause in fact); but a question exists regarding whether the resulting harm is proximately close enough to the initial event in geography and time such that any punishment or consequences laid upon or charged to the at-fault party are fair and just.

As an example of the concepts of “cause in fact” and “proximate/legal cause,” consider the prank featured on nearly every home video show – the scarecrow with the candy bowl. For this prank the homeowner dresses like a scarecrow and sits motionless on the front porch with a candy bowl in his lap. When the kid reaches into the bowl, the scarecrow-clad man lurches towards the kid and says, “Boo” or “Gotcha” or whatever.

Inevitably the kid screams and jumps (sometimes hitting the scarecrow). This is the intended reaction; but what if the child falls down the steps and knocks his teeth out or breaks an arm? The actions of the homeowner in this case are likely to be considered the cause in fact and the proximate/legal cause of the child’s injury.

Intervening acts and superseding events relate directly to the determination of the cause in fact and proximate cause. An intervening act is one that is or should be reasonably foreseeable and thus does not relieve the original wrongdoer of his liability for the injury.

Legal Liability and the Homeowners’ Policy

If damages are shown, does the homeowner pay these costs out of pocket or is coverage available from the liability section of the homeowners’ policy? The answer, once again, depends on the facts of the injury.

Section II of Insurance Services Office’s (ISO’s) unendorsed homeowners’ policy extends coverage for Personal Liability (Coverage E) and Medical Payments to Others (Coverage F). Coverage E pays only when the insured is found legally liable where Coverage F does not require the insured to be legal liable for coverage to exist.

Coverage E – Personal Liability

Coverage E’s insuring agreement reads, in part: “If a claim is made or a suit is brought against an ‘insured’ for damages because of ‘bodily injury’ or ‘property damage’ caused by an ‘occurrence’ to which this coverage applies, we will: 1. Pay up to our limit of liability for the damages for which an ‘insured’ is legally liable.”

If the insured is found legally liable for injury arising out of a prank, Coverage E’s insuring agreement extends coverage. However, the insuring agreement is the broadest the protection is ever going to be, the policy’s exclusions must be reviewed before making a coverage determination on a Halloween prank gone wrong.

Coverage F – Medical Payments to Others

ISO’s Coverage F insuring agreement begins: “We will pay the necessary medical expenses that are incurred or medically ascertained within three years from the date of an accident causing ‘bodily injury.’” But the insuring agreement goes on to state: “This coverage does not apply to you or regular residents of your household except ‘residence employees.’” As to others, this coverage applies only: 1.To a person on the ‘insured location’ with the permission of an ‘insured.’”

Coverage F applies because when the porch light is shining the trick-or-treaters are invitees and on the insured location with permission. Turn off the porch light and permission is no longer granted – Coverage F may no longer apply.

Expected or Intended Injury

Only one exclusion found in the unendorsed homeowners’ policy, applying to both Coverage E and Coverage F, appears to hold the possibility of removing coverage for injury to a prank victim: Section II Exclusions – E.1. Expected or Intended Injury. This exclusion reads, in part: “Coverages E and F do not apply to the following: 1. Expected Or Intended Injury ‘Bodily injury’ or ‘property damage’ which is expected or intended by an ‘insured’….”

Neither the prankster nor the homeowner failing to warn of a hazard expects or intends to cause bodily injury to a trick-or-treater. Yes, the prankster expected and intended for the children (or even adults) to scream and jump, but not to fall down the steps or experience any other harm.

Thus, Exclusion “E.1.” does not initially appear to remove coverage provided by either Coverage E or Coverage F for a Halloween prank. But even this interpretation is subject to the facts of the prank. In general, this exclusion does not apply to pranks intended to scare the neighbors.

The short answer to the second question posed by this article – “yes,” the homeowners’ policy does cover the cost of an injury arising out of a Halloween prank under both Coverage E and Coverage F. But this is a “yes” with limitations: 1) the policy/coverage part limits; and 2) the expectation of or intent to injure.

Disclaimer: This information is not a substitute for legal advice. Laws change from time to time, so if you are injured, protect your rights and call today at 1-800-598-2440 or contact the Womick Law Firm online.

For more information, please visit InsuranceJournal.com.

Halloween Liability: Can Parents Be Held Liable for Their Child’s Acts?

Portrait of three little children with wicked faces holding pumpkins

Smashing pumpkins and “TPing” are relatively common occurrences on nights like Halloween. Usually, such naughtiness doesn’t result in any kind of criminal charges or civil suits against the perpetrators due to the general understanding that “it happens” and is not meant to hurt anybody. But when does the innocent prank lose out to the legal rights of those who suffer property damage at the hands of such mischief? Generally, legal liability enters the picture when something more valuable than a pumpkin is damaged.

This article will not reach the criminal implications of Halloween pranks. It is instead meant for parents with minor children who may be held liable for the actions of their kids.

Can Parents Be Sued for the Actions of their Kids?

In short, yes – but not always. Depending on the state, parents may be liable for torts (or “wrongs”) committed by their children. Usually, if the action of the child was purely accidental, parents will not be held liable. A parent is much more likely to be held liable if the child has done the same type of thing before (in legal terms, if the parent had “notice” that the child engaged in that type of activity).

Usually parental liability only kicks in after the child is 8 or 10 years old – the age when a child can generally decide to do or not to do something of his or her own volition. When the child reaches 18, parents can no longer be held liable. In some circumstances, parental liability may expire before age 18, like when the child has been legally emancipated.

Why Should I Be Responsible for Something My Kid Does?

The idea behind parental responsibility laws is that parents can exercise reasonable control over their children. The legal term for this is “vicarious liability.” A parent is better equipped to supervise his or her child than anybody else is, and also is more likely than the child to be able to pay for any property damage.

Some states limit liability to a certain amount of money, or only allow parental liability for certain kinds of actions. For example, a state may allow a parent to be liable for personal injury damages (hospital bills, etc.) up to a certain amount. Or, a state may only hold parents liable when the child’s actions were intentional (not accidental or negligent).

If your child smashes a pumpkin, it is unlikely you will be sued for damages since pumpkins are not worth much (if anything). If, however, your kid smashes a pumpkin on someone’s head or knocks over a valuable statue in the process, you may be sued to cover the damages.

Determining the Legal “Parent”

Under parental liability laws, a parent is generally someone who has parental rights and responsibilities over the child. For a divorced couple, the custodial and residential parent is the one who will be liable (because he or she is more able to exercise control over the child). If the child lives with someone besides a parent, such as a grandparent, the grandparent is more likely to be held liable.

The guiding principle is that the person with the most control over the child will be the one held liable. Parents can also be held directly liable for negligent supervision of their children.

Actions Covered By Parental Liability Laws

As stated above, parental liability laws generally cover any intentional actions of the child, and sometimes negligent acts as well, depending on the law in your state. Pure accidents are usually not covered. If a child vandalizes a building, hurts someone, or is at fault in a crash with your car, you will probably be held liable for those actions.

Remember, you are not the only one who will be held liable – the child will as well. If the child has his or her own savings account or bond, the person suing may well recover from that first.

Disclaimer: This information is not a substitute for legal advice. Laws change from time to time, so if you are injured, protect your rights and call today at 1-800-598-2440 or contact the Womick Law Firm online.

For more information about Halloween Liability, please click here.

Personal Injury: Injured at the Gym

People running in machine treadmill at fitness gym club

If a slip and fall accident results in injury at a gym or health club, it may not occur to you at first that you may be eligible for compensation. However, any time you are injured and someone is at fault, you can seek damages for the medical attention, lost wages, and other financial losses that may incur, whether it is a business, sidewalk, or a private residence.

Of course, what can be sought after depends on the circumstances of the accident and how severely you have been injured. A slip and fall accident, for instance, is a solid argument that can be made against an establishment. However, slipping on a wet kitchen floor of your friend’s home can be much more difficult to seek damages for and prove. At a gym or health club, you can rest assured that you can seek damages when you have been injured due to someone else’s negligence.

What Qualifies as Negligence
Proving negligence can be tricky. Before trying to prove it, it is important to understand what qualifies as negligence. Negligence is when care is not exercised in a manner in which a reasonably prudent person would have abided by a duty of care. For instance, a reasonable employee would clean up a spill and leave a sign to warn customers of the danger. However, if the individual spilled water and someone immediately slipped on the puddle, it would not be reasonable to have expected the spill to have been immediately cleared. However, when someone slips in a business, they could still have a claim, as the business may liable under premises liability laws.

Tripping Hazards in a Gym or Health Club
There are some common slipping and tripping hazards that occur regularly in health clubs and gyms. These include:

  • Damaged or broken tiles on the floor
  • Equipment that is broken or damaged, creating a tripping hazard
  • Carpet that is worn or has tears
  • Wet floors, especially in the shower area and bathrooms
  • Electrical wires or cables that are not properly secured or tucked away

These hazards all increase the risk of a slip and fall accident and a gym owner is responsible for taking steps to ensure these areas are safe for patrons. Some common injuries that can be incurred as a result of a slip and fall accident in a gym include but are not limited to head injuries, broken bones, severe laceration and scarring, spinal cord injury, back problems, brain injuries, and other musculoskeletal injury or strains. Those who have been injured have the right to seek compensation for their medical bills and lost wages, along with pain and suffering, loss of enjoyment of life, and other related complications that may arise as a direct result of the injury.

Some gyms and health clubs require patrons to sign waivers of liability. The language is often purposely confusing, as to discourage patrons from seeking damages. Before deciding against a claim, consult with an experienced personal injury lawyer to see what legal strategies could lead to a successful outcome for your case.

For more information about personal injury and being injured at the gym, please visit HG.org.

Prevent Social Media from Damaging an Auto Accident Injury Case

Social Media speech bubble on white background.

It’s been a long trial and things look good. The jury seems to be siding with the plaintiff in a personal injury case. It was proven the injuries sustained by the plaintiff were a direct result of the traffic accident.

But then the defense provides a Snapchat photo of the plaintiff. Cases can be seriously damaged by careless use of social media.

Information

Social media is a good way for people to share things with their friends and loved ones. It’s also a way for total strangers to gather information on people.

It’s possible for this information to be collected and used to take advantage of someone. Once a person is in an accident, their attorney will be rightfully worried about what their client shares on social media.

It’s of the utmost importance that a plaintiff understands how the improper use of social media can cause serious harm to their case.

Location

Since the development of the Global Positioning System (GPS) enabled cellular devices as well as location networks, it is now a simple thing to share a person’s location. Using this has become quite popular.

A plaintiff needs to understand it’s essential to stay away from such networks until their case is decided. It’s possible an unknown party could be carefully watching them.

Snapchat in particular, can be extremely harmful to the case. In theory, Snapchat is only supposed to last a few seconds. But there are applications available that enable an individual to secretly save a Snapchat photo without a person’s permission.

Privacy Settings

If a plaintiff believes privacy settings will protect their information, they need to realize this is not quite true. Insurance companies are very knowledgeable at getting around privacy settings. Car insurance companies are hiring individuals to send friend requests to plaintiffs involved in litigation with them.

The goal is to gain access to a plaintiff’s profile. They will look for any bit of information that will help them decrease their payout.

Court Orders

Even if a plaintiff has privacy settings on their social media account and does not accept any new friend requests, an auto insurance company may still gain access to information stored there. Insurance companies are now seeking court orders to obtain a plaintiff’s social media information once a lawsuit has been filed, and some courts around the country are granting such requests.

Nothing a plaintiff puts on a social media site is truly private. A plaintiff has to realize an auto insurance company will do whatever it takes to not pay fair compensation for an auto accident injury claim.

Don’t Delete

Should a plaintiff have posted something on a social media account that may harm their case, they should not delete it. It’s even worse if they try and shut down any of their existing social media accounts. The reason for this is many courts view it as a deliberate attempt to destroy evidence. If this can be established by a car insurance company, it could cause serious harm to a case.

Photographs

It’s important a plaintiff is aware of the photographs they’ve posted on social media. If they have pictures of them legally drinking at a party that occurred years ago, it could still be used to harm their case. A car insurance company may use it to paint a picture of a client as someone who regularly drinks.

Images have a powerful effect on juries. A plaintiff needs to realize any pictures or information shared on social media has the potential to cause harm if their case goes to court.

In a personal injury case, the mere appearance of good health, even on something as seemingly harmless as a personal social profile, makes a personal injury case very, very difficult to make.

Disclaimer: This information is not a substitute for legal advice. Laws change from time to time, so if you are injured, protect your rights and call today at 1-800-598-2440 or contact the Womick Law Firm online.

For more information on how Social Media can damage a claim, please visit HG.org.

Are Consumer Reviews Trustworthy and Reliable?

Man Reading the Definition of Feedback

Looking for a good, quality product at the right price, like a toaster or tires for your car? Many of us do some research before buying just about anything, and more often than not we find reviews, ratings, and recommendations from other buyers. How much do you rely on consumer reviews?

Yelp

Yelp is a popular consumer-oriented website offering a wide variety of services. It’s main focus, however, is to help people like you and me find trustworthy businesses and merchants selling the quality goods we’re looking for, from restaurants to barbers to car mechanics.

It does this by letting consumers write and post reviews on its website about the things they buy. Yelp boasts that consumers (they’re called “Yelpsters”) have posted over 9 million reviews about local businesses.

Some of those businesses didn’t like what they were seeing, though. In fact, they were so unhappy they filed a class action lawsuit against Yelp in a California federal court.

The complaint was filed by all sorts of businesses in the San Francisco area, such as an animal hospital, bakery, and a furniture store. They claim many types of misconduct, dishonesty, and fraud, all of which hurt the various businesses. Two of the most noteworthy claims are:

Yelp had a certain practice: After a consumer wrote a negative review or recommendation, Yelp employees called the affected business and offered to sell it an “advertising package.” For a price, the business would be advertised on Yelp and Yelp would remove the negative review or recommendation from the site
Yelp employees actually wrote bad reviews about some businesses, services, and products
The bad reviews for Yelp don’t end there, either. Apparently, there are so many disgruntled businesses that an anti-Yelp, pro-lawsuit website has been created.

Can You Trust the Reviews?

As you’ve researched the product or service you’re looking to buy, you’ve probably come across dozens of consumer reviews. When you read them, you usually get an idea about whether the reviewer is being honest and straightforward. And, for the most part, you can generally trust your gut reaction; many consumers give their honest opinions.

Nonetheless, to protect your wallet and make an informed decision about whether to buy, it’s best to use consumer reviews wisely. Don’t trust them blindly. Here’s what you can do:

  • Understand certain realities. Sometimes consumers over-rate or under-rate a product or service for a variety of reasons, such as:
  • Anger or disappointment over a particular experience or in a certain product, or inexperience in buying similar products
  • Non-buyers and users. Believe it or not, it’s possible you’re reading a review written by someone who hasn’t even bought or used the product or service! Someone with a personal axe to grind with the store or restaurant owner may take revenge by writing a bad review. Or, maybe a competitor posts bad recommendations to steal business away from the company you’re reading about
  • Owner reviews? The flip side to revenge-seekers and saboteur-competitors: Businesses and merchants who post good reviews about themselves to drum-up business
  • Sometimes consumers are paid to give reviews, sometimes by the business or merchant and sometimes by consumer review websites. Such payments may influence a reviewer’s opinion

The moral: Take reviews with a grain a salt if they seem too negative or too positive:

  • Take control. To make a good buying decision:
  • Read more than one review, and from more than one website or some other source, like magazines and newspapers
  • Try to look at positive, negative, and neutral reviews, but try to focus on the objective ones, rather than those that seem a little too emotional or extreme
  • Talk to real people, too. Your family, friends, and co-workers may have experiences to help you
  • If you’re visiting a business, like a restaurant, ask other customers there what they think about the business, if they liked it, and if they’d come back again. If you’re buying a product from a retail store, ask a sales person what she thinks about the item, if other customers have said anything good or bad about it, and how often she sees the item being returned by customers because it doesn’t work as advertised
  • When possible, check with a trustworthy and unbiased source, such as Consumer Reports and the Federal Trade Commission (FTC). This is most useful when you’re in the market for products, like cars, computers, and vacuum cleaners, etc. For reviews and recommendations on services in your local area, like restaurants, plumbers, and dog groomers, check with sites like the Better Business Bureau (BBB), Angie’s List, and even sites like Yelp

It’s your money, and today maybe more than ever, you need to do everything you can to make sure you spend it wisely.

Questions For Your Attorney

  • Isn’t it illegal for a business or company to ask workers to post positive reviews about the business’ products or services?
  • I wrote an honest but negative review about a company and its product, and now that company is threatening to sue me for defamation. Can it sue me and win?
  • Can I join the class action lawsuit against Yelp? If not, can you and I start our own class action lawsuit?

http://consumer-law.lawyers.com/consumer-fraud/are-consumer-reviews-trustworthy-and-reliable.html

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