Personal Injury Updates

Probably the last thing on your mind when launching your boat, going camping  or digging for clams on a beach is “What happens if I get hurt?  What if my injury is due to a dangerous condition?”  If you have had to think about these unfortunate “what ifs” for you or someone in your family, the following is a summary on the law in Washington State when it comes to private or public land being used for recreational purposes.

What the Statute Does:

The Recreational Use Statute, RCW 4.24.210, provides immunity for “unintentional injuries” when the land is open to the public for recreational use free of charge.  The statute encompasses all recreational activities that are commonly conducted outdoors.[1]

What the Statute Does Not Do:

The Statute does not necessarily immunize landowners from intentional injuries, even if they are committed by third parties.  A landowner can be held liable for intentional injuries caused by third parties if: (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.

The Recreational Use Statute also does not limit a landowner’s liability when injuries are sustained by reason of a “known dangerous artificial latent condition for which warnings have not been conspicuously posted.”  A dangerous condition is defined as one that poses an unreasonable risk of harm.  A “latent” condition is one which is not readily apparent to the recreational user.  A condition is not “latent” within the meaning of the statute if the object itself is readily apparent to the user, even if the harm that it presents is not.

As always, when engaging in any recreational activity on land open to the public, check for warning signs, dangerous conditions and be observant.  If you notice something that is a potential danger, notify the landowner.

By now, most of you have already heard about the tragedy that occurred at the Indiana State Fair on Sunday when a stage collapsed, killing five people.   Apparently the rigging and lighting equipment was brought down by high winds in that tragic incident.  While it may seem like a freakish accident, is someone ultimately responsible for allowing this to happen?  Could this have been prevented?  Is this the type of risk one associates with going to an open air concert at a State Fair?

Hopefully, most of you are aware that when you purchase a ticket for a concert or sporting event, there is usually language on the back of the ticket that absolves the promoter or event organizer from any liability for risks inherent in the activity.  By going to these events, you “assume the risk” for any injuries that may occur for known risks associated with that activity and this acts as a bar to recovery.  For example, getting hit by a baseball at a baseball game is a known risk, as is injury from racing a go-kart around a track – as well as injury sustained while dancing in a “mosh pit” at a concert.  If you are injured in these situations, you likely will not be able to make a claim against the team, stadium owner or event organizer.   However, what if you are injured in a go-kart because there was standing water on the track, or the go-kart was missing a key piece of safety equipment?  What if you were hit by a foul ball because the net that was supposed to protect you was not in place, or was installed incorrectly? Or, what if you were injured because a stage collapsed at a concert?

So what is assumption of risk?  In its simplest form, “assumption of risk” means that the injured party, prior to the incident complained of, gave his or her consent to relieve the potential at-fault party of an obligation of conduct toward him, and agreed to assume a chance of injury from a known risk arising from the obligation for which the at-fault party has been relieved.  In Washington State, there are two main types of assumption of risk:  express and implied.

Express assumption of risk is generally bargained for and found in a contractual relationship.  A person expressly assumes the specific risk of harm if that person:

1. has full subjective understanding;
2. of the presence and nature of the specific risk; and
3. voluntarily chooses to encounter the risk.

Implied assumption of risk operates in the same way as express assumption of risk, but without the additional ceremonial and evidentiary weight of an express agreement.  It has also been held to apply where you impliedly consent to relieve the at-fault party of a duty to yourself about specific, known, and appreciated risks, and you engage in conduct, from which consent is implied.  In that situation, the at-fault party bears the burden of proving that you knowingly and voluntarily chose to encounter the risk.

In either express or implied assumption of risk, the key is subjective knowledge of the presence and nature of the specific risk.  If you are injured while engaging in a recreational activity or while attending an event and are confused about your rights and duties in that situation, the attorneys at Adler Giersch are willing and able to assist you.

Slipping and falling in a retail store can not only be embarrassing, but could result in serious injuries.  The strength or weakness of your case can depend on several factors, such as what you tripped or slipped on, the length of time this hazard was on the floor, who caused the hazard (customer or employee) and even what area of the store the hazard is located.  Just is important is what you do or don’t do after a fall.  Here are a few simple steps to follow in the event you have an injury in this situation:

1. If you are hurt, stay where you are.  Too many times injured patrons limp or hobble out of the store because they are embarrassed over what just happened.  If you do that, it becomes very hard to prove your injuries occurred because of a hazard on store property.
2. Tell someone immediately.  Get the attention of an employee who can assist you and contact management to ensure emergency aid is called if needed.
3. If another store patron saw what happened, get their name(s) and telephone number(s).  Good Samaritans may come to your aid, but often leave the scene and are never heard from again, so get their information while they are there.
4. Document the hazard that caused your injury.  Just about every cell phone has a camera, so take a picture of the hazard.  Whether it’s a squished tomato, crack in the concrete or frayed carpeting, documenting the hazard is very important.  Often that hazard will never be there again or in the same condition as it was when you were injured, so snap as many pictures as you can.
5. Ask that the store fill out an incident report.  If you have to bring a claim later, this will be an important piece of evidence and also triggers certain duties with the store’s insurance company.

Ask the store if they have video surveillance.  This a common practice in retail environments, so if they have video ask them to save it.  Saving this data should be common practice for a store with this technology, but this information is not always saved when it is not favorable to the store and can get “lost” or “erased.”