In short, premises liability is what holds property owners responsible for accidents and injuries that happened on their property. This includes any accidents and injuries that occurred in and around their business, or in their home.
Premises liability law requires that property owners ensure the safety of any person who enters their property, and take all reasonable measures to accomplish this. As a legal concept, it generally occurs in tandem with personal injury cases in which a person's injury was caused by unsafe or defective conditions on someone else's property.
Premises liability claims are commonly based on the legal concept of negligence, as are many personal injury claims. The legal term negligence refers to a person failing to exercise reasonable care, with that failure resulting in the damage or injury of another person. Negligence focuses on a person's failure to take certain precautions and actions, as opposed to the person's direct actions. Therefore, it must be proven that the property owner's negligence was the “actual and proximate” cause of the injuries being claimed (also referred to as causation). Once the other three elements have been proven, the plaintiff must then prove that there was some quantifiable loss or damage as a result of the property owner's negligence.
What are the Laws Regarding Premises Liability?
Specifically, the concept of premises liability is governed by the laws and procedures of the state where the injury occurred. In some states, the court may focus on the legal status of the individual. In other states, the court might focus on the condition of the property, as well as the activities of both the owner and the visitor.
In general, a court will consider numerous factors when determining whether or not to hold an owner liable for an injury, such as:
- The condition of the property (e.g., was it properly maintained, or did it need a lot of repairs?);
- The legal status of the individual visiting the property (i.e., was the person an invitee, licensee, or trespasser?);
- Whether both the owner and the visitor are at fault for the injury;
- The circumstances under which the visitor entered the property (for example, was the person a social guest, or were they attempting a rescue like a firefighter or police officer?);
- How the property is being used;
- Whether the accident or injury that occurred was foreseeable or not?
- Whether the visitor to the property was an adult or a child;
- Whether the owner's efforts to fix a dangerous condition or to warn visitors of a dangerous condition was reasonable;
- Whether the owner knew or should have known about a particular condition on the premises (e.g., was it hidden or obvious?).
What are the Different Kinds of Duties for Property Owners?
Owners of either type of property (e.g., residential or commercial), have certain duties towards other individuals who are on that property for a particular reason. In some states, the type of duty that an owner has to others may depend on who the person is on their property.
In general, there are three major categories of people covered by the rules found under premises liability laws. This includes the following categories:
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Invitees: Invitees are people who visit an owner's premises for the purposes of conducting business (e.g., a customer in a store), and they are owed the highest duty of care under premises liability laws.
- Although invitees are most frequently found in commercial buildings (as opposed to residential), there is always the possibility that a person might engage in a business activity from their home and as such, will invite other individuals to their home for business related reasons.
- Therefore, even those who visit a residential property for business purposes can be classified as invitees. If invitees are invited to an owner's premises, then the owner is required to inspect their premises regularly for any potential dangers. They also must either make their premises as safe as possible, or warn any invitees about any potential dangerous conditions.
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Licensees: People who come to a person's residence for non-business related reasons are known as licensees. They are usually there with the owner's permission and for the mutual benefit of both the guest and the property owner.
- An example of a licensee would be a neighbor that you invite over for a cup of coffee. Owners owe persons who are classified as licensees an intermediate level of duty. An owner either must make their residence as safe as possible, or warn licensees of any potential dangers on the premises that they know or should reasonably know about.
- Note, the duty to warn licensees does not extend to obvious defective conditions, such as a large hole in the steps leading to an owner's front door.
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Trespassers: These are individuals who enter onto an owner's property without their permission (and usually without an owner's knowledge). Although it will depend on the laws of the state and the type of trespasser they are classified as (i.e., unknown trespasser versus anticipated trespasser), owners owe only a very minimal duty to them.
Special duties apply to child trespassers in that property owners must take special precautions in order to prevent harm to child trespassers, because of the attractive nuisance doctrine. This means if the property owner has something on their property that would attract children to use it, such as a slide, they must take reasonable precautions to make sure the slide is safe because it is likely to attract children.
If the property owner is found to be negligent or breached their duty of care to prevent an accident or injury from occurring on their property, the plaintiff may be awarded damages. These damages could include:
- Future and present medical bills;
- Lost income or loss of earning capacity; and/or
The property owner may also be ordered to repair or fix the dangerous condition that led to the injury.
What are Some Defenses to Claims for Premises Liability?
There are also three major categories of defenses that are frequently used against claims for a premises liability lawsuit. These defenses include:
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Comparative Negligence: Most states offer some form of comparative negligence as a defense. In these states, if a plaintiff was partially responsible for their accident, then their damages will be reduced according to the extent that they were at fault.
- For example, if a plaintiff was 40% responsible for their injuries, then their damages will be reduced by 40%.
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Contributory Negligence: Only a handful of jurisdictions allow a defendant to claim contributory negligence as a defense. In a state that recognizes a defense for contributory negligence, if the plaintiff was partially responsible for their injuries, then they will not be able to recover any damages from the defendant.
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Assumption of Risk: An assumption of risk defense permits a defendant to argue that the plaintiff was aware of a potential danger on the property and assumed the risk of entering the property despite the danger.
Residential Property Owners
Every owner of residential property has an obligation to ensure that their land and home are reasonably safe for anyone who is invited to or visits the premises. Residential property refers to all sorts of real estate, including homes, townhouses, and condominiums.
Thus, if you are the owner of residential property and a person gets injured either in your home or on your land, then you may be held liable for the harm or losses suffered by the victim. This type of responsibility is known as “premises liability.”
Premises liability laws refer to the rules which govern residential homeowners' liability for personal injury. These types of claims are usually based on a tort law theory of negligence and may vary depending on the jurisdiction and facts surrounding an individual case.
Should I Contact a Lawyer for Help with Premises Liability Laws?
If a person was injured at your home and you are being held liable for the incident, the laws on premises liability will determine whether or not you were negligent and breached your duty to exercise reasonable care towards that person.
Fortunately, in most cases, if you are the owner, then your homeowners insurance policy will likely cover you for any liability. Additionally, your homeowners insurance company may also cover the costs of legal fees to handle any claims. This means that if you are the homeowner in the case, then you may not have to do much other than to notify your insurer of the accident and allow them to handle everything.
On the other hand, if you are the injured party to the matter and you suffered any type of significant injury on an owner's premises, then it may be in your best interest to contact a local personal injury lawyer before proceeding.
Most lawyers will take your case on a contingency fee basis, which means that you will not need to front the costs of an attorney. Instead, your attorney will be paid out by using a portion of the money that they recover from your claim.
Call our office today at 212-994-7777 or complete the convenient online contact form to set up a consultation.
Retail Store
In legal terms, negligence is the theory that allows injured people to recover for the carelessness of others. Alternatively, a person is negligent if they were careless given the circumstances of the situation. The most obvious example of negligence is personal injury, like a car crash. However, negligence may also be described as a flexible idea. It can appear in many contexts. Emotional harm like PTSD, developing due to negligent conduct is also cause for a lawsuit.
Retail store negligence generally results in personal injuries suffered by customers while using the store, or while on the store's premises. Personal injury claims commonly relate to slip and fall accidents, resulting from structural defects, weather hazards, and other issues. This gives rise to a premise liability claim with the burden of proof typically on the party who is suing for damages.
What Do I Need to Prove My Slip and Fall Claim?
The term slip and fall accident is a general term used to refer to several different personal injury claims. These occur when someone slips or falls on another person's property due to the presence of some kind of dangerous condition. This dangerous condition could be almost anything, such as poor lighting or broken handrails to a staircase. When someone is injured in a slip and fall accident, they could have grounds for a premise liability claim.
Slip and fall laws vary according to the laws of a state. However, there are some common legal grounds that all state statutes take into consideration. An example of this would be that a person typically has to prove that the property owner was somehow negligent. Once the plaintiff has established that they were owed a duty of care, they must prove that there was a dangerous condition in the store.
An example of this could be wet floors. The store must have known about the condition, but failed to remedy the condition in a timely manner. Additionally, their injuries must have occurred because the store breached its duty to them.
In terms of retail store negligence, if the injury occurred while the plaintiff was in the store, the court will look at whether the store owed a duty of care to them. This is dependent on whether the court determines that the plaintiff had a legal presence in the store as a visitor, invitee, or licensee. Additionally, some negligence claims may be established even if the plaintiff were a trespasser, depending on the circumstances.
Some specific types of evidence that could help with a plaintiff's case include:
- Security camera footage;
- Witness statements; and/or,
- Doctor's notes and hospital records.
What Other Types of Claims Can I Sue the Retail Stores For?
Although slip and fall claims are the most common personal injury claims against retail stores, injuries sustained in a retail store can result in various types of lawsuits and legal claims. Some examples include but may not be limited to:
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Store Security: Store personnel may reasonably detain a customer who is shoplifting; however, such acts must generally be performed in a reasonable manner, and not violate any of the patron's basic rights. They do not have the right to use excessive force in doing so. Lack of store security resulting in a plaintiff's injuries is another example of a claim for which a retail store may be sued;
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Defective Products: An injured plaintiff may sue the retail store for injuries caused by the store selling defective products. A defective product can be defined as any product that is unreasonably dangerous when being used for its intended purpose, without any alterations or interference. Additionally, a defective product is one that causes injury to a person due to either a design defect, a manufacturing defect, or a marketing defect;
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Falling Objects: Some examples of falling objects could include falling snow from the roof, or an unstable product on the top shelf. Retail stores may make every effort to reduce customer injuries such as these, but a plaintiff may be entitled to sue the store for injuries that result from the store's negligence; and/or
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Runaway Objects: Most retail stores have designated spaces in which to return shopping carts, baskets, scooters, etc. Even when a store takes such measures, a runaway cart that rolls into a customer or into their vehicle can cause injuries. The store could be held liable for such injuries.
What Are Some Legal Remedies Available in a Retail Store Lawsuit?
The damages available to a plaintiff in a retail store lawsuit will vary widely, based on state laws as well as the specific circumstances of each case. In general, the injured party can claim general and/or special compensatory damages. This is a form of financial compensation from the party responsible for causing the injury, and can include:
- Compensation for losses;
- Medical expenses;
- Lost wages;
- Costs associated with the repair of damaged property;
- Costs for permanent disability;
- Emotional distress injuries;
- Loss of consortium;
- Funeral expenses; and/or
- Costs for ongoing medical treatment.
A court also may order that the retail store is to implement new policies, training, and/or procedures to prevent similar accidents in the future.
Can the Retail Store Assert Any Defenses Against Me?
A commonly utilized defense by retail stores is that the plaintiff was somehow comparatively or contributorily negligent in causing their own injuries. Meaning, the plaintiff took some action that caused them to be at least partially responsible for the injuries they sustained.
An example of this would be if the plaintiff climbed onto the highest shelf, instead of calling a store employee, and was injured when the item or the shelf fell on them. The store could argue that the plaintiff contributed to their own injuries.
Another common defense is to claim that the plaintiff failed to mitigate (reduce) damages. An example of this would be if a plaintiff fell in the store, but refused medical assistance when offered by the store. They later develop a serious infection which causes them to lose their leg. The store could argue that the plaintiff failed to mitigate their damages by declining medical attention in the first place.
What Are the Steps to Take When Suing a Retail Store for Injuries?
In order to file a claim, you must first ensure that you have adequate evidence to support your claim. If you sought medical attention because of the incident, you should maintain any medical invoices, receipts, and/or communications. If you missed any days of work, you should request documentation from your supervisor or human resources department. Additionally, if you filed a police report, you should request a copy of that report. The same is true if the store filed an incident report of their own.
An experienced personal injury attorney, especially one that specializes in store injuries, such as a store injury lawyer, could help you gather and organize all of the necessary evidence for a successful lawsuit against the retail store. Additionally, an experienced store injury lawyer will help you make sure that any video evidence or other evidence recorded by the retail store is preserved, and not destroyed according to their video retention policies, etc.
Can I Sue a Store for Discrimination?
In short, yes. Although privately owned businesses maintain the right to refuse service, this right does not cover discrimination. Discrimination occurs when a person is mistreated because of their belonging to a protected class. Examples of protected classes include:
- Race and/or national origin;
- Gender and/or sexuality;
- Disability, including pregnancy; and,
- Religion.
If you can prove that the retail store discriminated against you, you may be entitled to damages should you bring a suit against them.
Should I Contact an Attorney about Suing a Retail Store?
If you have been injured due to the negligence of a retail store, you should immediately consult with a skilled and knowledgeable personal injury attorney. An experienced personal injury attorney can advise you of your rights, as well as your state's laws regarding the matter.
They can also help you gather evidence and file a lawsuit against the retail store on your behalf. Finally, an attorney can also represent you in court, as necessary.
Call our office today at 212-994-7777 or complete the convenient online contact form to set up a consultation.
Hotel or Resort
All property owners owe a duty of care to whoever comes onto their property. This duty of care is referred to as premises liability. The legal concept of premises liability holds property owners responsible for accidents and injuries that occur on their property. Generally, these accidents occur in and around a business.
Premises liability law requires that property owners ensure the safety of anyone who is present on their property by maintaining the premises and providing adequate warning of any unsafe or dangerous conditions. This means that property owners must take all reasonable measures in order to achieve this.
Premises liability and personal injury go hand in hand. Additionally, both legal concepts are related to the legal theory of negligence. Accidents that occur at a resort, hotel, motel, private association, or club facilities would be governed by standard negligence principles.
An example of an accident that could occur at such a place would be an accident in the swimming pool on the premises. Thus, hotels or resorts may be held liable for injuries to guests and visitors that occurred on the premises. Additionally, they may also be liable for negligent acts on the part of their staff and employees.
Simply put, negligence refers to the failure to use reasonable care. That failure then leads to injury or damage to another person. Negligence focuses on a person's failure to take certain precautions, whereas other areas of law focus on the person's direct actions.
How Can I Prove That a Resort or Hotel Was Negligent?
In order to hold a resort or hotel liable for any injuries that occurred on their premises, the injured party must prove that the resort or hotel was somehow negligent, or breached their duty of care. For a plaintiff to bring a negligence based lawsuit before a court, they will need to prove all four elements of a negligence claim. These elements are:
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Duty of Care: The hotel owes a duty of care to the injured party, to exercise reasonable measures in order to prevent any injuries on their premises. All persons have an obligation to protect other people from unreasonable risk of harm or injury. Some groups of people and professionals owe a higher duty of care than others. Such a group includes doctors, drivers, and lifeguards. Therefore, if a hotel or resort has a lifeguard monitoring their pool facilities, they will owe a higher duty of care;
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Breach of Duty: If the hotel or resort fails to inspect its premises that are open to all guests, or fails to maintain safe conditions, they may have breached their duty of care to their guests. In order to successfully bring a personal injury claim, the evidence must show a greater probability than not that the defendant breached their duty of care;
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Causation: The injured party must prove that the negligent act was the actual and proximate cause of the injuries being claimed. In general, the rule is that there must first be an actual cause in order for proximate cause to exist. Proximate cause refers to a test of foreseeability in order to determine if the defendant acted within the scope of their liability. However, proximate cause may not exist if there are other intervening acts. It would be unfair to hold a person liable for remote and unpredictable injuries or damages; and
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Damages: All three previous elements must be met in order for the plaintiff to then prove that there was some quantifiable loss or damage as a direct result of the defendant's breach of duty. These damages may be physical, such as personal injuries. The damages may also be economic, such as monetary and financial losses, or a mix of the two.
What Are the Duties Owed By a Hotel or Resort to Their Guests?
Hotels and resorts have a general duty to exercise reasonable care in maintaining safe premises for their guests. They have an additional duty to exercise reasonable care in operating the hotel business. These additional duties could include:
- Maintaining adequate lighting in guest access areas;
- Repairing any hotel defects that are unsafe and exposed;
- Controlling insect infestations, specifically bed bugs;
- Maintaining proper security in order to avoid crimes and theft;
- Training all pool staff to prevent injuries to guests;
- Maintaining all stairs and elevators; or
- Maintaining the locks to all hotel rooms.
The hotel or resort is responsible for inspecting the hotel premises for any existing dangerous conditions, and then taking reasonable steps in order to protect all guests from known or discoverable unsafe conditions. They are legally obligated to notify their guests of any unsafe or dangerous conditions that they are aware of, if they cannot remedy the situation.
For example, hotels and resorts may be found negligent for failing to provide a lifeguard for their pool facilities, or warning guests of the absence of a lifeguard. If a hotel or resort has a pool that is open to the public, the hotel or resort is required to train all pool staff in order to prevent any injuries to guests. Additionally, a hotel or resort may also be liable for a lifeguard's inadequate supervision.
Some common injuries that happen to hotel guests include:
- Swimming pool premises being dangerous designed, or having a lack of supervision and warning in order to prevent injuries;
- Slip and fall incidents due to a condition that the hotel should have been aware of; and
- Bed bug infestation due to failure to maintain sanitary conditions.
Generally, hotels and resorts cannot be held liable for criminal acts conducted by third parties who are not employees of the hotel. However, if the hotel knew, or should have anticipated the crime, they may be held liable. A hotel's liability regarding theft from a guest's room is limited, with the hotel generally only being liable if the guest can prove that the hotel was negligent in providing a safe premises. For example, if the lock on the room was faulty.
Do I Need an Attorney for a Hotel or Resort Injury?
You should consult with a skilled and knowledgeable personal injury attorney if you have been injured at a hotel or resort, such as in their swimming pool facilities. An experienced personal injury attorney can help you gather evidence to prove that the hotel or resort was negligent. Additionally, an attorney can represent you in a court of law, as necessary. Call our office today at 212-994-7777 or complete the convenient online contact form to set up a consultation.
Shopping Malls
A shopping mall is a collection of retail stores and restaurants, either in the same building or group of connected buildings, with its own dedicated parking. Some might have outdoor spaces for sitting and eating, as well as walkways between stores or buildings.
There are several potential hazards within shopping malls that may lead to injuries or accidents. These include wet floors, cracked or uneven floors or pavement, wrinkled carpeting, malfunctioning escalators, trampling (like during “Black Friday” sales), structural problems, assaults, and theft.
While there is not a specific shopping mall law that governs questions of liability when someone is injured in a shopping mall, the doctrines of negligence and premises liability determine the standard of care a shopping mall owner or store operator owes to their customers.
What Duties Does the Mall Owner Have?
Shopping mall owners have a responsibility or a duty to maintain the premises and keep the premises safe for its customers and anyone else who may legally be at the mall, regardless of whether they purchase anything from any of the stores. Owners must keep entrances and exits clear from any unreasonable dangers and to repair any dangers that exist. If owners are negligent in their duty to maintain the premises and keep visitors safe, they might be liable for any injuries caused by the dangerous condition.
For example, if the owner of the mall has not maintained the property and the roof leaks, leading to wet floors, someone could easily slip and fall. If the owner knew about the leak and failed to repair it or adequately warn people of the danger, they will most likely be liable for any damages if a person falls and is injured.
Who is Responsible If I am Injured at a Shopping Mall?
Mall owners are not responsible for all injuries that occur on the premises. In some cases individual store owners may be held responsible if the dangerous condition or cause of the injury was inside of their store.
Mall owners are responsible for maintaining and keeping safe the entrances and exits, common areas, and parking lots. If you are injured in one of those areas the owner of the mall might be responsible for your injuries. If you are injured inside of a store then the store owner might be liable, not the mall owner.
The lease that a store owner signed allowing them to use the space in the mall might also dictate who is responsible for injuries that happen in the store. For example, a lease might include terms stating that the store owner is responsible for maintaining common areas near the entrance to their store. If that is the case, the store owner will be responsible if someone is injured because of a dangerous condition in that common area.
What If a Crime Happens to Me at the Mall?
In some cases a shopping mall owner may be found liable for not protecting people on the premises from crime. You must be able to prove that the mall owner did not exercise reasonable care or take reasonable precautions to protect potential victims of crime. One reasonable precaution that a shopping mall can take is hiring adequate security to protect the premises.
Reasonable precautions does not mean that a shopping mall owner must do anything and everything possible to prevent any type of crime on the premises. The key word is reasonable. If the mall is located in an area with a lot of crime or there have been crimes committed on the premises in the past, it is foreseeable that crime might occur at that mall. The owner should take reasonable steps to prevent it.
A victim of a crime must prove that crime committed against them was both foreseeable AND the owner of the mall did not take reasonable precautions to protect customers for the owner to be found liable for damages to the victim. For example, a plaintiff might attempt to show that the owner failed to meet its mall security duties in one or more of the following ways:
- Security guards hired by the mall were negligent in their duties. For example, they did not patrol the parking lot of common areas the way they are required to or ignored signs that a crime was being committed.
- The mall had inadequate security, or not enough guards to patrol the size of the premises.
- The parking lot did not have adequate lighting.
- Cameras used to view the premises were not operational or no one was monitoring them.
Requiring a plaintiff to show that the owner of the mall or store did not take reasonable precautions is how balance is achieved between protecting shopping centers and protecting patrons of those shopping centers. The reasonableness standard ensures that owners are only liable for the crimes that they had some ability to prevent or mitigate.
If patrons of the mall were owed a duty to be protected from all crime, whether it is foreseeable or not, and whether the owner has taken steps to prevent it or not, the financial risk of operating a shopping mall would be too high.
How Can I Prove Fault in a Shopping Mall Liability Claim?
To prove fault in a claim against a shopping mall, a plaintiff must prove the owner was negligent with evidence that:
- The owner of the mall had a duty to its patrons
- A dangerous condition existed on the premises
- The owner of the mall knew about the dangerous condition
- The owner of the mall did not remove the dangerous condition, nor did they adequate warn that the dangerous condition existed
- The plaintiff was injured
- The dangerous condition was the direct and proximate cause of the injury
- The plaintiff suffered damages as a result of the injury
- The plaintiff did not contribute to their own injury
It can be helpful to use an example to illustrate how one can prove the mall owner is at fault for an injury suffered at a shopping mall.
We have already established that a shopping mall owner owes a duty to the people who enter the premises. That duty is to keep the premises safe from foreseeable risks and dangerous conditions. The plaintiff entered the mall and walked toward the escalator. As they approached the escalator the plaintiff slipped in a puddle on the floor, fell, and broke their hip. They sue the owner of the mall for damages, such as medical expenses.
The plaintiff and their attorney learn that the roof of the mall had been leaking. The owner of the mall had not fixed the leak because the cost of the repair was too expensive. The owner had been putting a “Caution! Wet Floor” sign in that location, but there was no sign there the day the plaintiff fell. The plaintiff was healthy and did nothing to contribute to the fall and subsequent injury.
In this example it is fairly clear that the owner of the mall is liable. They owed their patrons a duty to keep the premises safe from foreseeable risks. It is foreseeable that the floor would be wet when the roof has a leak. The mall owner could have warned of the risk using a sign or blocking off the area, but failed to do so. The dangerous condition and failure to warn caused the plaintiff to slip and fall. The owner was negligent and it caused the plaintiff's injury.
Are there Limits on Shopping Mall Liability?
Shopping mall owners are only liable for injuries caused by foreseeable risks. There are many things that might happen in places like shopping malls where large groups of people gather and spend time. Owners are not responsible for keeping patrons safe from dangers that are unforeseeable.
A dangerous condition that is new and that the mall owner has yet to be notified of is not a foreseeable risk. In the example above where the patron slipped fell, the outcome of litigation would be different if the roof had never leaked before, was properly maintained, and the owner of the mall had no knowledge that there was a problem.
Furthermore, some dangerous conditions are so obvious that everyone should know to avoid them. For example, parking lots are typically known to be dangerous. Everyone should be careful when they are walking through the parking lot to get to the mall.
How Do I Sue A Shopping Mall?
If you have been injured at a shopping mall and believe the owner of the mall is responsible, you can sue the mall. You should hire a personal injury attorney to file a complaint against the owner of the shopping mall and/or the owner of the store where the injury happened. Your attorney can gather evidence and will be able to request documents, subpoena maintenance records, conduct depositions, and interview witnesses to determine the facts surrounding the dangerous condition that caused the injury.
You might be able to file a claim against other parties, depending on the nature of the injury. For example, the manufacturer of a faulty escalator or the company that provides security on a contractual basis. You might also be able to file a claim against the local government agency responsible for issuing permits or doing inspections to make sure that the building or buildings are up to code.
Do I Need a Lawyer for Help with a Shopping Mall Liability Legal Issue?
If you have been injured at a shopping mall you should contact a shopping mall injury attorney to review your case. An experienced personal injury lawyer can gather the necessary evidence to proceed with a claim and help you understand your rights as a plaintiff. Your attorney can negotiate with the other parties involved and represent you in court.
Call our office today at 212-994-7777 or complete the convenient online contact form to set up a consultation.
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