REAL Exclusive Magazine

Premises Liability From A Design Expert’s Standpoint

By William Henry, PhD

Avoiding the pitfalls and detecting the guide posts for success in personal injury claims

As an experienced court certified forensic expert, I am often retained by personal injury and construction litigation attorneys. As an architect, they seek my opinion regarding potential design errors and omissions, code violations, as well as any and all construction defects that may have contributed to a premises liability claim. These claims are filed in order to seek recovery for slip and fall victims, injuries sustained by construction workers, and other injuries or wrongful deaths stemming from the construction environment.

Personal injury claims can range from a few thousand dollars to well over several million dollars. The diverse and unique circumstances range across the board from dangerous and unsafe conditions to minor deficiencies that the vast majority of users and patrons easily negotiate every day. In today’s litigious environment it is important to distinguish the former from the latter. There are some conditions that jeopardize the health, safety and welfare of the public to such an extent that serious injury is inevitable. There are other conditions that are simply so minor that any accidents occurring in the nearby vicinity of these small anomalies can only be attributable to the victims’ incompetence and/or attitude to seek a financial windfall.

I. Timeline
In both types of cases, including the ones involving unsafe environments and the other including small anomalies in the physical environment that we encounter every day, both plaintiffs, defendants, and attorneys should be aware of the pitfalls and cognizant of the guideposts that can foretell success or failure in filing and or defending a personal injury claim. I have identified procedures that will cover and better apportion liability without the expert needing to rely on his relative expertise in opining on such matters. The first measure and some attorneys tell me probably the most effective, is to establish a timeline for any and all critical decisions that led to the alleged premises deficiency. This timeline should include the following: (1) The year the building was designed and constructed; (2) The entities involved in creating the built environment; (3) The policies and procedures in place at the time of the alleged injury and when were they established; (4) Whether individuals involved in the alleged incident have knowledge of the actual condition of the premises that may have contributed to the accident; (5) The parties involved in improving and permitting the design and construction required to obtain occupancy of the premises.

Once dates are assigned to all the above, a sequence of events in the form of a timeline is identified and created. Typically I respond to the circumstances surrounding each milestone event that may be a contributing factor, by offering a concise assessment of the following: (1) Were the circumstances code compliant or code deficient? (2) Did the actual as built condition conform to the permit design documents submitted to the building department? (3) Did the actual as built condition reflect work that meets, exceeds, or fails to achieve industry standards?

II. Code Applicability
Most improved environments fall under the jurisdiction of many federal, state, or local land use control codes e.g. zoning, building codes, as well as fire protection and the Americans with Disabilities Act governing legislation. In addition, during construction the Occupational Safety Hazard Act governs. With these governing codes and regulations, it is increasingly likely that most environments will violate one or many codes and/or regulations. The litigators are acutely aware that a clear code violation that can be proven as contributory typically spells victory for the plaintiff. Therefore, determining and assessing code applicability is crucial in premises liability claims.

III. Discovery
We, as designers and experts, must read all depositions and testimony by those identified in the timeline as well as those who had any knowledge of the accident, with the same diligence as the attorneys. The testimony rounds out and contributes to the preparation of the timeline.

My firm has been able to create three-dimensional depictions of the actual premises site before, during, and after the accident. Leading forensic experts are now moving into animation and depicting not only the static setting, but also the moving kinetic man-made showing human motions before, during, and after the accident. Animation recreations are the most compelling exhibits if executed accurately and professionally. I have observed opposing counsel struggle when presented with graphic illustrations that they cannot counter with their legal argument. I have also found opposing counsel flounder when confronted with the fact that they cannot understand construction plans when presented in front of a jury. It is at this point that the tables turn on testimony.

With complete factual and accurate disclosure and preparation of all the elements enumerated and described above, it has been my experience that the actual contributory causes and liability can be properly assigned to the parties. With thorough research and documentation, the expert’s opinion almost becomes anti-climactic. Therefore, if you form your expert opinion by following the process of timeline, code applicability and discovery, your role as the expert witness becomes relevant and extremely beneficial to the liability determination of the claim.

William Henry PhD is the Principal in Charge of RGA-Design, LLC a full service architectural and interior design firm that has served as the architect of record for over 1,000 projects across the State of Florida (Registration number AA0003523). He has lectured and written widely on the above topic. His most recent publication is ‘Return of the Master Builder’ available on Amazon Kindle e Books. Henry’s contact information is whenry@rga-design.com; (813-226-2220 Ext204) or visit the company web site at www.rga-design .com or www.buildingdoctorfl.com.

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