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Mediation and Arbitration of Premises Liability Cases

Mediation and Arbitration of Premises Liability Cases
MDRS has handled a wide array of premises liability cases, that is, accidents that occur on the property of another.  The property involved could be a personal residence, a commercial property or public property.  These accidents account for a significant number of personal injury claims and are particularly well suited to resolution by way of mediation or arbitration.  Generally speaking, liability is based upon the requirement that business owners and homeowners have the responsibility under Massachusetts law to maintain their premises in a safe condition for all persons who might reasonably be expected to enter onto the premises.

Types of Premises Liability Cases MDRS Has Resolved:
The range of premises liability cases has significantly expanded with the promulgation of updated Building, Housing and Sanitary Codes, other statutory regulations, developments in the area of warranty and strict liability, increased potential for violation of MGL c.93A, and recent and ongoing changes in case law, such as in snow and ice cases.  A case that illustrates such changing dynamics in premises liability matters is Papadopoulos v. Target Corp., 457 Mass. 368 (2010) in which the SJC overturned the old rule which distinguished liability based upon natural and unnatural accumulations of snow and ice and decided that the same obligation that a property owner owes to lawful visitors as to all other hazards will apply to hazards arising from snow and ice. That is a duty to “act as a reasonable person under all of the circumstances including the likelihood of injury to others, the probable seriousness of such injuries, and the burden of reducing or avoiding the risk.”  Another example of a changes in Massachusetts in premises case law is Sheehan v. Roche Brothers Supermarkets, Inc., 448 Mass.780 (2007) which somewhat lightened plaintiff’s burden of proof in regard to self-service retailers in slip and fall cases.

Our panel of MDRS neutrals have extensive, up to date experience in all matters involving premises liability.  Though in the past “premises liability” was associated by many primarily only with trip and fall or slip and fall cases, MDRS has resolved a broad array of premises cases, including, but not limited to, the following:

Trip and falls due to defective surfaces
Falls on defective stairways, steps or pavement, stair collapse, lack of/or defective handrails
Unmarked or uneven stairs or steps
Slip and falls on debris or foreign substances
Balcony, roof, porch and deck defects
Building or floor collapse
Unprotected holes and uneven surfaces
Inadequate Construction Warnings
Accidents caused by snow and ice
Swimming pool accidents, lack of fences, warning signs, or lifeguard negligence
Dog bites and animal attacks
Elevator and escalator accidents
Smoke and fire injuries
Lead paint poisoning
Defects at supermarkets, retail stores and commercial properties causing slips, trips or falls
Defective or dangerous store displays or falling products, shelving in stores
Slips and falls from spilled food, drinks or products
Accidents involving flooding, water leaks, oil leaks or spills
Inadequate lighting on property, parking lots, staircases
Injuries caused by chemicals or toxic fumes, explosions or electrocutions
Injuries involving Building code, Housing code or Sanitary code violations
Failure to maintain residential or commercial premises
Assaults and wrongful death from negligent security
Inadequate security involving nightclubs, bars, or entertainment venues
Sexual assault, battery or rape due to inadequate or negligent security
Construction site accidents
Subrogation claims involving premises accidents

Liability may extend beyond the property owner:
Ordinarily it is the property owner who is the defendant in premises liability cases.  However both commercial and residential property owners often lease all or parts of their property to tenants, who may have responsibility, by the terms of a lease or otherwise,  for property maintenance.  Contractors working on, or who have worked on, the property involved may have responsibility for premises accidents.  Architects, engineers, training organizations, property maintenance or management companies and plowing or landscaping contractors are often seen as defendants in premises cases.  Some larger businesses are self-insured or have a self-insured retention policy with an insurer.   As in many cases, the availability of insurance is an important component in premises liability cases, whether it be homeowners or renter’s insurance covering personal residences or apartments, or commercial insurance policies covering businesses.  Often, an insurance policy covering premises contains a medical payments provision which could provide payment for a limited amount for medical bills incurred by an individual injured on the covered premises, without the need to prove fault.

Why Mediate or Arbitrate Your Premises Liability Case With MDRS?

Save Time and Expense:
Ordinarily, to prove a premises liability case the plaintiff must prove that the owner knew or that reasonably should have known about the condition which caused the injury.  Experience suggests that the issue of liability in premises liability cases is most often contested by premises owners and comparative negligence on the part of the plaintiff is often alleged.  As a result, lengthy and costly litigation and discovery is usually involved.  Often liability experts are retained by both parties to provide their opinions on matters such as whether the conditions involved are defective or hazardous, the cause of these conditions and whether any building or housing codes or other applicable regulations or industry standards have been breached.  Expert site visits and narrative reports can be very expensive, as can be the attendance of experts as witnesses to testify at trial.

These costs and high legal fees associated with lengthy litigation can be overly burdensome to the parties as well as to the insurers who are usually involved.  ADR provides a more economical and efficient mechanism to resolve these cases than reliance on the unwieldy and impractical process offered by the Court.  Cases submitted to mediation or arbitration with MDRS can often be scheduled for hearing within days of submission, depending on the needs and availability of the parties.  Final and binding arbitration decisions are generally rendered from 10 to 20 days from the close of the hearing.

Avoid The Uncertainty of Lay Jury Verdicts / Minimize risk:
Perhaps no other type of case involves more jury verdict uncertainty, for plaintiffs, defendants and Insurers alike, than premises liability matters.  Contested issues such as the applicability of Building and Sanitary Codes or other statutory regulations, increasing claims for breach of warranty and strict liability, and potential violations of MGL c.93A, add to the risk to all parties in relying on a lay jury for a binding resolution.

Mediating these premises liability cases with an experienced neutral has a success rate of over 90%.  The parties can control the outcome of a mediation and generally reach a negotiated resolution that meets their specific needs.   In the alternative, a binding arbitration before an experienced neutral can serve to minimize the risks involved in placing premises liability cases in the hands of a lay jury.  If a jury trial is requested, ordinarily the decision makers on the jury have no experience in the law or in the valuation of cases.  An experienced neutral will have familiarity with, and the ability and attention to comprehend applicable building codes, other regulations, and the case law in the area involved, and is more likely to reach a more predictable and appropriate decision than a lay jury.  Another alternative, a high-low arbitration, where the applicable award of the arbitrator is capped by a minimum and maximum amount (generally not disclosed to the arbitrator) can also minimize the high risks faced by plaintiffs and defendants in proceeding to a jury trial.  The parties can tailor a dispute resolution process that will work best for them based on each individual case, and can retain greater control over the manner in which their dispute is resolved than they would if they opted for trial in the court.

With MDRS, the parties select a mutually convenient time and place for a hearing. Last minute postponements and delays, often resulting when a court is not ready for the case to commence as  scheduled, are avoided by using ADR.   Last minute calls by court clerks saying that the court needs you  to commence trial tomorrow do not occur when using ADR.

For many parties, an important advantage of ADR is the private resolution of their dispute. This is often the case where reputational interests are involved, such as a business involved in a premises liability case, or where the parties wish to limit public access to documents, exhibits, pleadings and testimony. An ADR arbitration hearing or mediation session takes place in a private office setting and not in an open court room with spectators. A related concern of some parties may be avoiding a reported decision where an adverse precedent would encourage the filing of additional cases against the party. Another important advantage of ADR to many parties is that except in certain rare circumstances, the arbitrator’s decision is final and is not subject to appeal, which could take years, require significant further costs and result in continued uncertainty.

We hope that you will consider submitting your premises liability case to MDRS for a prompt,  economical and fair resolution for you and/or your client.  We are happy to answer any questions you may have.  Kindly contact us by telephoneat  (800) 536-5520, or email us at caseadmin@mdrs.com.   Please visit our website for more information www.mdrs.com.