How Investigations Work in Property-Related Accident Cases

Premises liability allows victims injured on others’ property to hold owners or managers at fault when they fail to act reasonably in identifying, fixing, and / or warning about dangerous conditions.

Determining if a property owner can be held liable for injuries on its land, however, depends on the individual facts of a case; in other words, whether a “duty of care” existed and to what degree, will always rest on the unique set of circumstances surrounding the accident.

Because premises cases are hinged on applying general legal theories or court decisions to very fact-specific situations, a one-size-fits-all approach can cause even experienced attorneys to overlook the many different possibilities and places where liability may exist.

At Biren Law Group, we take calculated steps to avoid this type of tunnel vision by tailoring our strategies for determining fault and liability, and leveraging our experience, reputation, and resources to perform thorough investigations which focus on the key elements of premises liability. That includes an approach consisting of:

Informal Discovery & Client Interviews
Evidence Preservation
Site Inspections
Witnesses
Formal Discovery

Investigations: Steps for a Successful Premises Claim

1. Informal Discovery: Client Interviews

Discovery is the formal legal process of obtaining and sharing evidence, but such work can be done, to some degree, long before discovery formally begins. One of the most important steps of building a premises case, for example, is using the client as a resource for direct information about essential facts and issues to asses:

How the accident occurred and in what context (i.e. lighting conditions, weather conditions, and time of day);
Whether there were witnesses who saw what happened or know how a dangerous condition occurred;
If there is a known history of prior similar incidents;
Whether the client or others involved have potentially valuable evidence related to the incident at hand (i.e. photos, video footage of the scene, documentation, communications, etc.).

In addition to getting critical data points from clients, early explorations and discussion can aid in anticipating potential defenses, such as arguments raising issue of a client’s own negligence causing or contributing to the accident. Personalized questions during client interviews can help prepare for common defenses and creative curveballs from the defense. For example:

What type of clothing / work gear / shoes was the client wearing? Did they pose trip or fall risks? Can they be inspected and preserved as evidence?
Was the client distracted, walking while texting, running to catch a bus, or engaging in any type of activity that may have contributed to the accident?
Why was the client at the location, and did they have the right to be in said location?
Should the client have been able to easily identify a dangerous condition?

2. Evidence Preservation (Demand to Preserve Evidence)

Written demands to preserve evidence are another critical step in the early stages of a premises case, as they can serve as a first “appearance” in front of the property owner, put the defense on notice, and alert them that victims have an intent to pursue damages.

Demands to preserve help accomplish two important objectives:

Evaluating evidence early in a case: Victims and attorneys may request CCTV or surveillance footage, HOA meeting minutes, job safety analyses, incident reports, and other relevant information before any lawsuit is filed, and provide time to evaluate evidence and strategize a plan of attack.
Preserving important evidence: By putting a defendant on notice, demands also provide leverage in the form potential sanctions for defendants who lose, alter, or destroy evidence in their custody (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1).

3. Site Inspections

Attorneys may visit and walk a premises in person, bringing clients or witnesses who are familiar with the scene, when possible, to point out where the incident occurred, the location of any dangerous conditions which caused or contributed to the incident (i.e. puddles in a slip and fall case), and other details relevant to a case. Early inspections of an accident site can elicit information victims may have not remembered, seen, or viewed as consequential to their claims at the time.

In some cases, attorneys may also bring experts to site inspects. These experts may assist in accident reconstruction, or provide opinions on hazards or liability issues specific to the site, industry, regulations or codes, or the types of issues involved in a case.

Early site inspections offer opportunities to assess critical components of a case, such as:

Whether a dangerous condition is as dangerous as initially presumed, or to what degree injuries were foreseeable;
Theories of liability and issues that may apply to the specific circumstances, such as trivial defects, open and obvious defects, and actual or constructive notice;
The potential strength of a case, and the time and resources it may require.

Depending on where an incident took place, visiting an accident scene may require additional steps. In California, state law allows for the following:

Public Property: If a premises is open to the public, defendants do not have to be notified of an inspection (Pullin v. Superior Court (2000) 81 Cal.App.4th 1161).
Private Property: If a premises is private property, defendants must be put on notice of the plaintiffs’ intent to conduct a site inspection, and request access via a written Notice of Site Inspection that includes the proposed time, date, and location.

4. Witnesses

During the informal stages of investigation, there should be a focus on identifying and interviewing any potential witnesses. Client interviews can help in obtaining the information of known witnesses, as can site inspections, or visits by investigators who may assist in identifying potential witnesses. If witnesses do exist, they should be interviewed as soon as possible, as memories can and do fade with time.

5. Formal Discovery

Formal discovery is a time when Inspection and Access demands are made. As the cornerstone of premises liability litigation, requests for production should be thorough and specific to issues identified in the case. Under the CA Civil Discovery Act, defendants are obligated to provide evidence in their possession upon request, including:

Photos, diagrams, and blueprints of the site and incident area;
Video footage of the scene at and around the time of the incident;
Safety manuals, company policies, Board / HOA meeting minutes or newsletters, and other internal documents maintained by property owners;
Contracts held by property owners with any third parties who manage, clean, or perform work or services on the premises;
Maintenance / inspection logs or incident reports in the property owner’s possession;
Reports of any similar incidents or complaints made before and after the incident.

In addition to requesting evidence, formal discovery may also entail deposition (formal interviews under oath) of key witnesses, including:

Key personnel with knowledge of the condition of the premises, including any parties identified in interrogatories (i.e. security, HOA members, Board members, property management, maintenance crew, and other contractors.)
Key witnesses identified by the defendant’s most knowledgeable person, investigators, or the client;
Workers on duty at the time of the accident, those who made incident reports, and any person with the client at the time.

Because defendants looking mitigate liability may argue plaintiffs bore some portion of fault in causing their own injuries, they may attempt to introduce comparative negligence evidence. Just as it is import to request, preserve, and secure the admission of evidence which favors victims, it is as equally important to fight the introduction of such evidence from the defense – particularly if it were to mislead or confuse the jury (CA Evidence Code § 352) on matters of duty, rather than the issue of the standard of care they are tasked with evaluating.

Biren Law Group: A Proven Father-Son Team

Premises cases can be made in their earliest phases, which is why effective investigatory strategies are so crucial. Investigations built on tactfulness, civility, and the cultivation of good faith among all involved parties cam also pay dividends when it comes to cooperation, and when negotiation settlements or taking a case to trial.

As a Father-Son legal team that prioritizes close working relationships with clients, colleagues, and leading experts Biren Law Group can efficiently navigate of a range of premises accident investigations across the L.A. area and Southern California. Contact us to speak confidentially with an attorney.