Why does property liability work the way it does?
August 7, 2008 1:12 AM Subscribe
Why does property liability work the way it does? In other words, why am I responsible for someone else's injury in my home, even if it was in no way my fault?
My friend, who has a 20-year-old daughter, permitted her daughter's friends (all over the age of 18) to come over for a swim. Two of the boys were throwing a third boy around and horseplaying. The third boy developed a hairline fracture in his neck. He and his mom have threatened to sue my friend.
I know YANAL and I am not asking for legal advice. She'll get a lawyer. I am asking why they should be liable in the first place. My friend did not provide an unsafe environment (as referenced in this thread).
Another example: My mom, a few months ago, tripped on a rug at work, and injured her knee pretty badly. The hospital told her to file workman's comp. Why is her boss responsible? I'm not saying my mom is responsible for tripping, but why isn't there something akin to an "act of God" law?
Another person I was talking to compared this to me being liable for someone tripping in my driveway. Assuming there was nothing unsafe about my property, if someone did trip in my driveway, who decided that I should have to pay that person's medical bills? (I know in practicality it is the insurance company who pays, but why my own insurance and not the injured person's insurance?) Why is it my fault? Why can't it be argued "this is just one of those things that happens" or even "it's the victim's fault for not watching where he was going?"
How did this law come about in the first place? Is there ever an exception to the law?
My friend, who has a 20-year-old daughter, permitted her daughter's friends (all over the age of 18) to come over for a swim. Two of the boys were throwing a third boy around and horseplaying. The third boy developed a hairline fracture in his neck. He and his mom have threatened to sue my friend.
I know YANAL and I am not asking for legal advice. She'll get a lawyer. I am asking why they should be liable in the first place. My friend did not provide an unsafe environment (as referenced in this thread).
Another example: My mom, a few months ago, tripped on a rug at work, and injured her knee pretty badly. The hospital told her to file workman's comp. Why is her boss responsible? I'm not saying my mom is responsible for tripping, but why isn't there something akin to an "act of God" law?
Another person I was talking to compared this to me being liable for someone tripping in my driveway. Assuming there was nothing unsafe about my property, if someone did trip in my driveway, who decided that I should have to pay that person's medical bills? (I know in practicality it is the insurance company who pays, but why my own insurance and not the injured person's insurance?) Why is it my fault? Why can't it be argued "this is just one of those things that happens" or even "it's the victim's fault for not watching where he was going?"
How did this law come about in the first place? Is there ever an exception to the law?
>I am asking why they should be liable in the first place.
>who decided that I should have to pay that person's medical bills?
>Why is it my fault?
A lot of questions that reflect a misunderstanding.
The first point is that laws vary by state. But this is what happens in most states. A letter is sent threatening a lawsuit, or a lawsuit is filed, and allegations of negligence are made. Several different claims will likely be included, with the plaintiff's lawyer knowing that some will not fly but one or two might. Under these circumstances, one that will surely be made is that the older adults failed to properly supervise the younger adults and to prohibit horseplay.
The case will be evaluated by a claims person at the insurance company and, either before or after a lawsuit is filed, a defense attorney. It will be investigated (medical records retrieved and reviewed) and defended. At all times in the process, they can consider whether to offer money to settle the case, to avoid the costs of further defense and to avoid the risk of a verdict in favor of the plaintiffs.
Now consider a trial, sometimes a few years later. At the time of trial, the laws that will be given to the jury to apply will include:
1. Negligence on the part of the landowner will have to be established. There is no automatic liability on his part. (This is a point that many people, yourself included, miss.)
2. The burden of proving that negligence is on the plaintiff.
3. The fact that an injury happened is not evidence of negligence.
The practicalities will include:
4. Depending on the severity of the injury, a jury may be willing to find in favor of the plaintiff, even if the proofs are somewhat weak.
5. In some jurisdictions, juries and courts are known to be more generous than in others. (It is, after all, OPM.)
Those are the factors that often lead to a compromise settlement, and for some insurers, the sooner the better.
In addition to all of this, most homeowners' policies included a small "medical payments" provision, often limited to $5,000 or so, that will reimburse the claimant's out of pocket medical expenses without fault having to be shown.
And workers' compensation benefits are designed to cover all injuries on the job, without consideration of fault.
posted by yclipse at 3:35 AM on August 7, 2008 [3 favorites]
>who decided that I should have to pay that person's medical bills?
>Why is it my fault?
A lot of questions that reflect a misunderstanding.
The first point is that laws vary by state. But this is what happens in most states. A letter is sent threatening a lawsuit, or a lawsuit is filed, and allegations of negligence are made. Several different claims will likely be included, with the plaintiff's lawyer knowing that some will not fly but one or two might. Under these circumstances, one that will surely be made is that the older adults failed to properly supervise the younger adults and to prohibit horseplay.
The case will be evaluated by a claims person at the insurance company and, either before or after a lawsuit is filed, a defense attorney. It will be investigated (medical records retrieved and reviewed) and defended. At all times in the process, they can consider whether to offer money to settle the case, to avoid the costs of further defense and to avoid the risk of a verdict in favor of the plaintiffs.
Now consider a trial, sometimes a few years later. At the time of trial, the laws that will be given to the jury to apply will include:
1. Negligence on the part of the landowner will have to be established. There is no automatic liability on his part. (This is a point that many people, yourself included, miss.)
2. The burden of proving that negligence is on the plaintiff.
3. The fact that an injury happened is not evidence of negligence.
The practicalities will include:
4. Depending on the severity of the injury, a jury may be willing to find in favor of the plaintiff, even if the proofs are somewhat weak.
5. In some jurisdictions, juries and courts are known to be more generous than in others. (It is, after all, OPM.)
Those are the factors that often lead to a compromise settlement, and for some insurers, the sooner the better.
In addition to all of this, most homeowners' policies included a small "medical payments" provision, often limited to $5,000 or so, that will reimburse the claimant's out of pocket medical expenses without fault having to be shown.
And workers' compensation benefits are designed to cover all injuries on the job, without consideration of fault.
posted by yclipse at 3:35 AM on August 7, 2008 [3 favorites]
Why can't it be argued "this is just one of those things that happens"
Because the counter argument goes "it was an accident waiting to happen, and they should have done something about it before I was hurt by their negligence"
Taking your final example first; you can be sued by anybody for pretty much anything for no reason at all. It doesn't mean they'll win, it doesn't mean you're liable, but it will cost you legal fees to defend yourself. If there really was nothing unsafe on your property, i.e. there was no trip hazard, and it was purely their own fault, then you shouldn't be held liable. If, on the other hand, you had a 2 inch crack, yes, you could well lose when your postman trips and breaks his ankle on it. The standard for liability often seems ludicrously low in the US, but then I'm not american.
In your second example, the rug was a trip hazard, and the company should have removed it or made it safe - presumably she tripped when the rug moved? Employers have a duty to provide a safe environment for workers and customers, and have insurance to cover them because it's virtually impossible to actually ensure that no-one ever has an accident ever. frankly, it's cheaper to pay up than fight it in court, even if the business didn't actually do anything wrong.
In your first example, by allowing the boys to continue to horse around when it was forseeable that someone would get hurt, it's possible to argue that your friend and her daughter could have prevented the accident, but by their negligence allowed it happen on their property. I'd be surprised if such an argument actually worked, given the boys were all over 18, but I've seen stranger things.
What you're really asking is
1) why is the US in general so litigious
2) why do politicans write suck liability laws with very low thresholds of liability
3) why do the courts allow such frivolous lawsuits to proceed, or even win on fllimsy grounds
4) why do defendants to such lawsuits have to pay such high costs even when they win?
There are legitimate cases where employers do not provide safe environments for workers, where properties are badly maintained and people are hurt through no fault of their own, and customers are injured through the sale of dangerous or faulty merchandise.
Whether the measures to protect these people are too easily abused by frivolous cases, is a political and social question more than a legal one.
posted by ArkhanJG at 3:49 AM on August 7, 2008
Because the counter argument goes "it was an accident waiting to happen, and they should have done something about it before I was hurt by their negligence"
Taking your final example first; you can be sued by anybody for pretty much anything for no reason at all. It doesn't mean they'll win, it doesn't mean you're liable, but it will cost you legal fees to defend yourself. If there really was nothing unsafe on your property, i.e. there was no trip hazard, and it was purely their own fault, then you shouldn't be held liable. If, on the other hand, you had a 2 inch crack, yes, you could well lose when your postman trips and breaks his ankle on it. The standard for liability often seems ludicrously low in the US, but then I'm not american.
In your second example, the rug was a trip hazard, and the company should have removed it or made it safe - presumably she tripped when the rug moved? Employers have a duty to provide a safe environment for workers and customers, and have insurance to cover them because it's virtually impossible to actually ensure that no-one ever has an accident ever. frankly, it's cheaper to pay up than fight it in court, even if the business didn't actually do anything wrong.
In your first example, by allowing the boys to continue to horse around when it was forseeable that someone would get hurt, it's possible to argue that your friend and her daughter could have prevented the accident, but by their negligence allowed it happen on their property. I'd be surprised if such an argument actually worked, given the boys were all over 18, but I've seen stranger things.
What you're really asking is
1) why is the US in general so litigious
2) why do politicans write suck liability laws with very low thresholds of liability
3) why do the courts allow such frivolous lawsuits to proceed, or even win on fllimsy grounds
4) why do defendants to such lawsuits have to pay such high costs even when they win?
There are legitimate cases where employers do not provide safe environments for workers, where properties are badly maintained and people are hurt through no fault of their own, and customers are injured through the sale of dangerous or faulty merchandise.
Whether the measures to protect these people are too easily abused by frivolous cases, is a political and social question more than a legal one.
posted by ArkhanJG at 3:49 AM on August 7, 2008
When you invite people onto your property, you have a duty to maintain a reasonable level of safety for them. Especially if you are engaged in business.
So, in your scenario, if your friend wasn't aware of the horseplay, or was aware of the horseplay and did nothing, she *could* be viewed as being a negligent pool owner, and thus be responsible to some degree for the results of that negligence.
As for the larger issue of litigiousness, one of the things that is confusing about civil cases as opposed to criminal ones, is that the threshold for evidence is lower.
And that people (juries and sometimes judges) tend to believe that whoever the "big guy" in the case can afford a little something extra for the poor injured party.
posted by gjc at 4:13 AM on August 7, 2008
So, in your scenario, if your friend wasn't aware of the horseplay, or was aware of the horseplay and did nothing, she *could* be viewed as being a negligent pool owner, and thus be responsible to some degree for the results of that negligence.
As for the larger issue of litigiousness, one of the things that is confusing about civil cases as opposed to criminal ones, is that the threshold for evidence is lower.
And that people (juries and sometimes judges) tend to believe that whoever the "big guy" in the case can afford a little something extra for the poor injured party.
posted by gjc at 4:13 AM on August 7, 2008
In the second example, Worker's (not workman's) Comp exists specifically to cover all on-the-job injuries so the employee doesn't need to prove liability (negligence or other tort) and the employer is protected against both frivolous lawsuits and extremely high damages-- payouts are capped depending on the type of injury and the amount of time the person is out of work.
In your other examples, you are assuming liability from an allegation. As others have said, that's the whole point of the system, to determine liability. Anyone can sue or threaten to sue anyone else. I could send you a letter today saying you defamed me and I am going to sue-- that doesn't mean you're liable. As my example shows, this is not limited to property liability, it's the way the whole civil litigation system works. (As noted above, Worker's Comp is different.)
In some jurisdictions there are special rules about the duty of care you owe to those on your property, depending on their status, but you really don't need to know about that, because it's immaterial to your question.
posted by miss tea at 4:18 AM on August 7, 2008
In your other examples, you are assuming liability from an allegation. As others have said, that's the whole point of the system, to determine liability. Anyone can sue or threaten to sue anyone else. I could send you a letter today saying you defamed me and I am going to sue-- that doesn't mean you're liable. As my example shows, this is not limited to property liability, it's the way the whole civil litigation system works. (As noted above, Worker's Comp is different.)
In some jurisdictions there are special rules about the duty of care you owe to those on your property, depending on their status, but you really don't need to know about that, because it's immaterial to your question.
posted by miss tea at 4:18 AM on August 7, 2008
it's funny that you immediately think about the law and lawyers, litigation, etc.
I think what you seem to be concerned about is more likely the result of the nature of the insurance business: your home insurer can sometimes make bigger profits settling lawsuits and then passing the cost to it's customers (i.e. you) than it would defending itself against litigation.
meanwhile lawyers pretend they are suing for 'negligence' when in fact they know that your insurer would rather pay up than face lengthy and uncertain litigation often enough.
but the root of the matter is the insurance business, not the law. of course you are responsible if you are negligent but only a court can really decide the issue if there is a dispute.
in the end it is a zero sum game.. someone has to pay for the injury and no system is perfect.
posted by geos at 5:08 AM on August 7, 2008
I think what you seem to be concerned about is more likely the result of the nature of the insurance business: your home insurer can sometimes make bigger profits settling lawsuits and then passing the cost to it's customers (i.e. you) than it would defending itself against litigation.
meanwhile lawyers pretend they are suing for 'negligence' when in fact they know that your insurer would rather pay up than face lengthy and uncertain litigation often enough.
but the root of the matter is the insurance business, not the law. of course you are responsible if you are negligent but only a court can really decide the issue if there is a dispute.
in the end it is a zero sum game.. someone has to pay for the injury and no system is perfect.
posted by geos at 5:08 AM on August 7, 2008
The law varies from state to state. Here, in Massachusetts, I served on a jury for a case where a woman fell in a restaurant parking lot and suffered a substantial injury (something on the order of a broken leg).
The jury was instructed that we should find for the plaintiff if the following three conditions were met:
1.) The plaintiff suffered injury (physical, financial, etc)
2.) The defendant was negligent
3.) The defendant's negligence caused the plaintiff's injury.
To me, there didn't seem be much evidence of the defendant's negligence-- there was nothing obvious the restaurant could have done to prevent the fall. But many of the jurors were very sympathetic to the woman. At least one juror said something to effect of, "she has to get something for what she's been through."
A jury of ordinary people is going to be much more sympathetic to an individual than an insurance company, no matter what instructions the judge provides.
posted by justkevin at 6:10 AM on August 7, 2008 [3 favorites]
The jury was instructed that we should find for the plaintiff if the following three conditions were met:
1.) The plaintiff suffered injury (physical, financial, etc)
2.) The defendant was negligent
3.) The defendant's negligence caused the plaintiff's injury.
To me, there didn't seem be much evidence of the defendant's negligence-- there was nothing obvious the restaurant could have done to prevent the fall. But many of the jurors were very sympathetic to the woman. At least one juror said something to effect of, "she has to get something for what she's been through."
A jury of ordinary people is going to be much more sympathetic to an individual than an insurance company, no matter what instructions the judge provides.
posted by justkevin at 6:10 AM on August 7, 2008 [3 favorites]
I don't know about the other scenarios, but workers' comp laws are really their own category and are specifically designed to be no-fault. The employers take responsibility for the cost of all work-related injuries to their employees (including some when they're not at fault in any way) and on the flip side, employers can't be sued for things that really are their fault. Workers get covered without having to prove that their employer's at fault (although they do have to prove it's work-related), but they don't have the chance to get higher damages (including compensation for pain and suffering, and punitive damages from the employer) when their employer really screws up. Theoretically it's supposed to be a fair trade-off that keeps lawsuits down, keeps employers' costs down, and makes sure that workers can get coverage for injuries suffered on the job without having to sue for it. (My opinions on how fair it really ends up being for workers is a bit tangential...)
posted by EmilyClimbs at 7:56 AM on August 7, 2008
posted by EmilyClimbs at 7:56 AM on August 7, 2008
Because there is a real tradition, if not outright code, that makes landowners the first liable party. This makes sense when you realize that your modern legal system was built when only the wealthiest could own land and suing an individual just led to some debtor's prison time for them. Things are different today, but not that different. This tradition still makes sense because lawyers know where the money is. If I get into a fist-fight at McDonalds, regardless of fault, I can probably get a settlement for my medical bills. The chances of taking this to court with a jury of 12 random people is a scary prospect. I think its practical, but can be very unfair to the landowners.
posted by damn dirty ape at 8:16 AM on August 7, 2008
posted by damn dirty ape at 8:16 AM on August 7, 2008
You're not getting the real story here, and you're not going to get it from me (I'm an attorney, but I'm no property liability expert). But I can tell you that property owners owe different duties of care to people on their property depending on how they came to be on the property. This varies from state to state, but generally visitors fall into three categories: Trespassers are owed the lowest duty of care (over generalizing, but basically you cannot intend to injure). Then come licensees, which are owed somewhat more of a duty. The final category is invitees, which are owed the most care. It's safe to say that in many jurisdictions a property owner owes an invitee a safe environment -- they must protect not only against hidden dangers, but even those that are observable. About the only thing a property owner is generally not responsible for are latent, unknown dangers. This duty can extend to a responsibility to monitor activities, and to act to prevent unsafe activities occuring on the property, such as horseplay. Of couse, I have no idea whether a duty is violated in the situation you describe, but the injured person certainly falls within the invitee category, and is owed a pretty high duty by the property owner.
As for "why" this should be, to answer that you'd have to look at the evolution of common law over hundreds of years.
posted by pardonyou? at 9:10 AM on August 7, 2008
As for "why" this should be, to answer that you'd have to look at the evolution of common law over hundreds of years.
posted by pardonyou? at 9:10 AM on August 7, 2008
++ to pardonyou. People upthread are right about the litigious nature of the USA and the purpose of the courts to resolve disputes and find fault, but that's not an answer to your question as I see it (why are landowners often held to be "responsible" for activities that they are not obviously responsible for?)
The answer is that landowners have certain duties towards people on their land. Since landowners (more or less) have control of what gets built on their property, how it is maintained, and who happens to be on the land (whether invited or uninvited) they should take precautions to prevent personal injury resulting therefrom.
Worker's comp was explained well by EmilyClimbs; it's really a separate issue from the rest of your question.
posted by Chris4d at 1:11 PM on August 7, 2008
The answer is that landowners have certain duties towards people on their land. Since landowners (more or less) have control of what gets built on their property, how it is maintained, and who happens to be on the land (whether invited or uninvited) they should take precautions to prevent personal injury resulting therefrom.
Worker's comp was explained well by EmilyClimbs; it's really a separate issue from the rest of your question.
posted by Chris4d at 1:11 PM on August 7, 2008
I share your bemusement about this topic, and for me, it extends beyond property law. If I run a stop sign, e.g., I feel like I've done something a particular amount 'bad.' Whether I have the good luck to have no bad consequences result, or the bad luck to strike and kill a brilliant, kind, young pedestrian in the crosswalk, I'm not at all sure that I should be held any more or less punishable.
I guess it comes down to what punishment is really for -- deterrence? protecting society? revenge? rehabilitation? It seems to me that, for the first two, there's no more or less deterrence or protection needed based on the consequences that were outside my control, just the base amount for the original running of the stop sign. The third reason seems somehow primitive. And the kinds of punishments we design don't mesh too well with the last.
I like your thought about an 'act of God' law, and I think our legal system would benefit from counting more as outside of anyone's control. It's as though somehow our ideas about free will are so precious to us that we can't accept any situations as falling outside of our theoretical control, when I believe that so much of life is outside our control.
Personally, I even apply this line of thought to much more 'deliberate' criminal acts, like rape and murder. I mean, I have no urge to rape or murder that I have to resist. If I did have such an urge, would it be under my control whether to resist it? I know that the urges I do have are extremely hard to act against, and I know that others find them similarly hard -- hence that statistic you always hear about 95% of diets failing. I mean, if 95% of us can't resist the urge to eat a cupcake, and you assume that at least some of those who commit violent crimes feel similarly strong urges to commit those crimes, is it fair to expect them to do any better, just because their urges are ones that we can't imagine sharing? Not that they shouldn't be kept away so that society is safe, but I wonder how we'd treat the perpetrators differently if we believed that some urges are beyond resisting for 95% of us, and that it's just our own dumb luck -- whether nurture-based luck, nature-based luck, or a combination -- that we don't share those particular urges.
posted by daisyace at 2:30 PM on August 7, 2008
I guess it comes down to what punishment is really for -- deterrence? protecting society? revenge? rehabilitation? It seems to me that, for the first two, there's no more or less deterrence or protection needed based on the consequences that were outside my control, just the base amount for the original running of the stop sign. The third reason seems somehow primitive. And the kinds of punishments we design don't mesh too well with the last.
I like your thought about an 'act of God' law, and I think our legal system would benefit from counting more as outside of anyone's control. It's as though somehow our ideas about free will are so precious to us that we can't accept any situations as falling outside of our theoretical control, when I believe that so much of life is outside our control.
Personally, I even apply this line of thought to much more 'deliberate' criminal acts, like rape and murder. I mean, I have no urge to rape or murder that I have to resist. If I did have such an urge, would it be under my control whether to resist it? I know that the urges I do have are extremely hard to act against, and I know that others find them similarly hard -- hence that statistic you always hear about 95% of diets failing. I mean, if 95% of us can't resist the urge to eat a cupcake, and you assume that at least some of those who commit violent crimes feel similarly strong urges to commit those crimes, is it fair to expect them to do any better, just because their urges are ones that we can't imagine sharing? Not that they shouldn't be kept away so that society is safe, but I wonder how we'd treat the perpetrators differently if we believed that some urges are beyond resisting for 95% of us, and that it's just our own dumb luck -- whether nurture-based luck, nature-based luck, or a combination -- that we don't share those particular urges.
posted by daisyace at 2:30 PM on August 7, 2008
Response by poster: geos: "it's funny that you immediately think about the law and lawyers, litigation, etc."
No, really it's not, when the boy and his mom threatened to sue.
I did ask a couple of people before I posted here and they all seemed to say liability was automatic. I guess it's a widespread misunderstanding.
posted by IndigoRain at 4:43 PM on August 7, 2008
No, really it's not, when the boy and his mom threatened to sue.
I did ask a couple of people before I posted here and they all seemed to say liability was automatic. I guess it's a widespread misunderstanding.
posted by IndigoRain at 4:43 PM on August 7, 2008
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And you can't really say that you friend didn't provide an unsafe environment because that's the sort of thing that would be determined through the legal process.
posted by clockzero at 2:48 AM on August 7, 2008