Posted by Sansone / Lauber Trial Lawyers on February 13, 2014SHARE IT
As slip and fall injury lawyers we see all types of dangerous conditions, usually on commercial property, but sometimes on residential property as well. In this case the fall was caused by a hidden and dangerous condition in the front yard of a neighborhood home. Our client was walking her dog in a subdivision in north St Louis County when she severely injured her foot and ankle. She was walking along the road, there was no sidewalk, and car traffic required my client to place one foot on the curb and one foot just inside the curb and into a yard, unbeknownst to her, just inside the curb along the property was a concealed 1-2 foot deep hole that her lower leg got caught in. Below are two picture. First, a view from the curb showing that the dangerous condition was not open and obvious. Second, a view straight down showing the hole concealed by grass and vegetation.
Then when you actually stand over the concealed hole you can see that the weeds and grass growing out of it and see the hole itself.
Under Missouri law the property owner owes a duty of reasonable care. Residential property owners are liable for dangerous conditions, especially if they are concealed or hidden, and it is foreseeable that someone may be hurt. In this case, it is foreseeable that someone walking along the road would step into the first foot or so of the property. Under Missouri law, the property owner has a duty to make that area safe since it is a concealed dangerous condition on land “maintained near a public right of way”, that public right of way being the subdivision street.
Our client’s injury to her ankle and foot were exacerbated by her condition of peripheral artery disease. Making it more devastating to her and much more difficult for her foot and ankle to heal than someone without that disease. We anticipated that defense from the insurance company; that without that condition, this injury would not have progressed to the extent that it did. We tackled that defense head on, we do not run from potential defenses, we use them to our advantage. Someone like our client is easier to hurt and harder to fix, so that explains why her injury was so severe from what the insurance company described as a minor fall.
Additionally, Missouri is a state that follows the egg-shell skull plaintiff doctrine, meaning that when a party is negligent, it is not a defense that the Plaintiff was more susceptible to injury, i.e. a plaintiff with an egg shell thin skull (or arterial disease) is injured more easily than an average person. Additionally, Missouri Jury Instruction 19.01 instructs the jury to find in favor of our client if the property owner’s “negligence directly caused or directly contributed to cause damage to plaintiff.” In any case when one of the defenses is that the Plaintiff had a preexisting injury, the Missouri courts have ruled this instruction MUST be given to modify the verdict director instruction. See Woodward v. Research Medical Center, 2005 WL 2007878 (Mo App WD 2005).
Had our client been of average health this injury would have been limited to just a broken toe, however, as stated above, this does not matter under Missouri law. The defendant takes the plaintiff as they are, whether strong and resilient to injury or weak and more susceptible to injury.
We have many clients that are nervous to pursue a case because they have previous back injuries or other injuries to the same parts of their body that were hurt in the crash or fall. This is absolutely not a reason to be nervous about pursuing an injury claim. In fact, the pre-existing injury is beneficial to your case as it helps explain to a jury why a simple fall or a low speed car crash hurt you so bad. Take a perceived weakness and turn it into a strength: victims with pre-exisitng injuries are easier to hurt, harder to treat, and find it much more difficult to recover from an injury.
If you think you have a case, call us today for a free consultation at (314) 863-0500 or submit your case online and we will respond asap.