OTLA Trial Lawyer Summer 2021

31 Trial Lawyer • Summer 2021 By Stephen Winstead H aving been an expert witness for premises liability cases for many years, I have learned that truth is typi- cally found in digging deep into the fundamental questions of the incident —where, when and why — followed by a deep dive into questions of liability. Here is a brief example digging deeper into the questions of the incident. Where did the incident occur? A: In the restaurant foyer Deeper A: On the right side of the second of three steps When? A: At 5:30 pm on a Saturday night on December 21. Deeper A: During a dark, rainy eve- ning. Why? What physical condition caused or contributed to the incident? A: The floor was wet… Deeper A: After the party preceding her shook off the rain from their um- brella. On the surface this may appear to be a simple premises case due to wet floor- ing, an unfortunate event, caused by another restaurant patron. But these questions and answers alone may not address the full picture of what happened and why, and more importantly, who is responsible. Are there other contributing factors? Perhaps there are and for those, one needs to dig deeper. After uncovering the basic facts of the incident, a good investigator will dig even deeper, particularly with regard to the physical conditions and requirements of the building, such as flooring slip resis- tance, floor slope, lighting, height of steps or hand rail requirements. All of these raise more questions, such as: • What are the applicable standards (codes) for the property at the time of the incident? • What is the standard of care for the property owner and/or property man- ager regarding the condition of the property? • What is a reasonable responsibility for an “average” person in the same circum- stance? (This is mostly a legal question, but needs to be investigated.) • Are there special requirements for the use and occupancy of the building? A key can be building code standards and how they apply to premises liability assessment. With over 40 years as a build- Stephen Winstead ing plans examiner, inspector, official and architect, talking about codes is second nature and, frankly it is like a foreign language that we learn parts of until we have a complete understanding and even then it might go back to the interpreta- tion from a building official. Building codes may or may not be relevant. Here is what I mean. The ap- plicable building codes are those which governed the construction of the build- ing at the time it was built. But there are exceptions. If the building was remod- eled, added onto, or if the occupancy and use of the building changed from the original construction, those changes typically trigger compliance with the codes at that time. For example, an old house converted into a restaurant would require at least some portions of the restaurant to comply with the current codes but not necessarily all portions. That brings us back to some of the initial “w” questions pertaining to the slip and fall example above. In this example, “where” the incident occurred is more critical than the age of the building. • Was this a common, public walkway ( e.g., accessible route)? • Were the steps upgraded or modified during the restaurant conversion in the example above? • Were they required to be? • Was there adequate lighting? • Did the lighting meet code require- ments? KNOW THE CODE See Code p 32