Posted on May 12, 2022 at 12:28 PM by The Biker Lawyers
Cam and Ginger recently sat down to discuss some Frequently Asked Questions about personal injury. We recorded the conversation (click below to listen) and transcribed it for your reading pleasure!
Ginger: Hey, it's Cam and Ginger here. We had a question. Uh, if someone falls and gets hurt on my property, am I liable? Cam? You want to take this one?
Cam: Sure. Um, we're going to start with saying it's really complicated in law school. I think in "Property" was the name of the class. It was probably about a week that we discussed this.
Cam: We read a lot of cases and it was a large section of the. So rather than trying to approach it from an academic point of view, I want to discuss it in, in kind of broader strokes. And the question ultimately is going to be reasonableness and to look at reasonableness, we need to consider a few things.
Cam: One is what kind of property is it? Is this a business that's open to the public? What kind of business is it? Uh, who are we expecting to be there? Um, is this residential? Is it a home? Is it farmland? Is it a gypsum quarry somewhere? So the kind of property it is, is going to matter for what we can reasonably imagine will happen.
Cam: The other factor we've got to consider is the different kinds of people that could be on the property. And by that, I mean, are they customers, are they like friends and family? Are they trespassers? Are they children? Um, one thing that I think no matter what kind of property it is that has to be considered, there's a doctrine called attractive nuisance.
Cam: And the idea is that kids will be kids. And if they see something that they think is fun, they're going to play with it. And we all know it. So we need to take steps to make that safe. Because we know the kids are going to find things and play within that. An example from my youth, as I used to run around the neighborhood with my friends, and there was this old gazebo, uh, kind of on in someone's backyard is one of those things where the backyards are all lined up and there were a bunch of trees.
Cam: It was Fort Dodge, Iowa, and there's this old gazebo that was decrepit and dilapidated and my friends and I really love to play in that old gazebo. The people who live there kept chasing us off. And eventually, it got explained to us that, um, it's, it could fall down at any time. That's not a good enough approach.
Cam: I was old enough and my friends were old enough that we could understand that and appreciate it and stay away from it. Uh, once we heard the reason, but we weren't the oldest kids in the new. You know, at the time we were, you know, maybe 10 or something, but there were, there were other younger kids that that's, that's not going to do.
Cam: And again, this was in an era where we ran around like this and some places people still do the appropriate thing in that circumstance would have been to demolish the gazebo because it wasn't fenced in, there was nothing to prevent it from, from kids getting to it.
Cam: So that's, that's I think a question that, that if you start there and you ask what would happen if kids are playing on this, are kids going to like young kids?
Cam: Are they going to hurt themselves on this? They don't know better. They're six years old or something and they're playing in the neighborhood. And if the answer is yes, then. You might have a problem. Now, if you're talking about you have a pond or some kind of naturally occurring thing. Sure, sure. That's a different story because that's not, that's not really a circumstance that you can really do anything about.
Cam: Right. Um, and again, we got to reasonableness, is it reasonable to pump out a pond and fill it in with dirt because kids might find it? No, it's not. Um, that's but that's, that's a different kind of thing. On the exact opposite end of the spectrum, there was this case, uh, at CAT Co. I don't remember the rest of the name, but it was Iowa is an Iowa case of this, this, uh, couple that was out in the rural area.
Cam: And they had a shed with these Mason jars. They were collecting. Yeah. And they didn't think right. And they didn't want people to steal their Mason jars. So they set up a trap gun in the shed. When you open the door, the gun shot, you. And that's what happened. Somebody, somebody broke into their shed, uh, maybe to steal the jars, maybe not, you know, maybe they were trying to shelter from bad weather.
Cam: I don't remember, but that's kind of the point. It doesn't matter. That is unreasonable, no matter what. And you can take that back to the kids example. Some kids could open that door and get their heads blown off. Uh, it doesn't matter if you're trying to deter thieves, you can't do that. That is way out of control.
Cam: Super unreasonable. And, uh, that's, that's a hard line rule in Iowa and probably in most jurisdictions that you can't have trap guns. You just can't.
Ginger: So no matter how much you enjoyed home alone. No.
Cam: Well, actually he was kind of responsible in home alone. I think that was actually a good example to go through because that was during a home invasion.
Cam: That, that he knew was happening and he engaged in self-defense and he was in control, you know, there's that scene where he's dropping the paint cans and it's hitting him in the face and that bar, but he dropped the paint cans when they got there. Right. And that would be kind of similar to the homeowner who has a gun that they take out and they brandish or discharge in the direction of an intruder.
Cam: It would be different if you know, a little. I just had that shit set up all the time.
Ginger: Right. So his brother or sister walks in and gets clocked in the face
Cam: or that nice old guy who was actually just helping everybody by putting salt on the sidewalks. Right. So that's, that's the more extreme example is the gun thing.
Cam: The kind of thing that I think winds up being a trickier case is say a situation where. There's a homeowner that decides they want to put in some stones.
Cam: You know, like you can go to Menards and get those circular pieces of rock and they've got pebbles in it, you know, with concrete or bricks or, or whatever.
Ginger: Yeah. Yeah.
Cam: And you don't totally lay a brick path, but you put some down to create a path and. They've got an edge on them. They're kind of a raised edge. And, uh, I'll get an interesting question with that is so say you've got kids that are kind of cutting through your yard and they're wearing down a path and you say, okay, they're going to do this.
Cam: I can't stop them, but let's at least make this look good. And you put those stones in hoping that they'll use the stones, or at least there's some something that looks nice about it, but you've got that raised edge. And then one of them's running through and they're screwing around. They trip up. And bust out all their teeth on another one, you might have a problem there.
Cam: That's, that's reasonably, that's reasonably foreseeable and that's not exactly what the legal standard is anymore, but it's a good way to think about it. So, you know, for that kind of homeowner, if they're trying to be as safe as possible, I would say. Make those things level with the ground, or, you know, build out the whole path with bricks or something.
Cam: But again, they know that the kids are running through, you got a different story, exact same scenario, except no one's wearing a path through except the people who live there and they, they want to put stones down, but they live out in Webster county, way, way out, way out of town. And, um, they have no expectation that anyone's going to show up.
Cam: Okay. You know, like I've got an aunt and uncle who live, live out in Webster county like that with, uh, I think their kids are going off to college now, but they got a gasoline tank outside of their place, because it's just a smart idea when you're that when you're out of, out of town like that, right. So they laid down a path like this.
Cam: There's, there's no reason for them to expect that kids are going to come running through. Cause where are they coming from?
Cam: And at that point it would be. Almost certainly purely adult trespassers who are maybe there to siphon off their gas or steal something else.
Cam: And, um, there is some level of duty to trespassers.
Cam: Again, like my aunt and uncle, they couldn't set up a shotgun to shoot them if they got to the gas, but that, that level of care is, um, Too high for a trespasser. Now, if, if it's a business, it gets a lot more complicated. And I'll tell you this. If you're a business owner and you have an area that's open to the public, you should get off the internet right now.
Cam: And stop looking at these videos and go talk to a lawyer. Who's going to look at the circumstances of your property and give you an answer that is specific to your situation. 'cause that's, that's what you need to do here. If you're dealing with the public, um, make sure you've got a lot of insurance for sure.
Cam: Because sometimes, you know, this is not always like somebody did something wrong. Sometimes it's just an oversight, a mistake. That's what negligence is sometimes, you know, a boneheaded or you didn't think it through enough, even though you probably should. And we all do it. It happens. I've done negligent stuff, you know, I've, I've, I've pulled out the wrong way and dented up someone's car and been really glad that's all that happened.
Cam: And that's, that's part of the reason to have insurance. But if you're, if you're a business, for sure, I'm sorry. Spend a little money, uh, consult with an attorney. If this is something you're worried about, spend a little money and make sure you've got a good insurance policy. Um, And if you're a homeowner and you've got something in particular, you know, you've got some alarms going off in your head, as I've been talking about some of these things I give you the same advice is either do something to make it safe so that it can't be a problem if you're worried about it or just go and get some advice from.
Cam: Um, because, as I said, at the beginning of this, this is a... an incredibly complex area and it's not necessarily legally complex, but the fact. The drive the situation it's, it's like a Rubik's cube of situations.
Cam: The, the legal
Ginger: theory is pretty concise, but in terms of how this is going to be applied, everybody's got different things, different variables, whether it's a raised edge here, or it's another item there, that's what you're saying.
Cam: What kind of property is it? What kind of person is on the property? And I don't mean, are they a Canadian? I mean, are they a customer? Are they a guest? Are they a trespasser? Are they a child?
Cam: Um, and then yeah, the circumstances, what is it?
Ginger: Yep. Alrighty. Hopefully, that helps answer the question. Uh, if you got any more questions, feel free to comment below, you know, talk to us, let us know what you're wondering about. We're here to help. All right.
What is “The Lethal Left”?
Cam: So the lethal left is a situation where the biker is approaching an intersection and to the right of the biker on the, on the intersection is a vehicle, a car, a truck, whatever. And that vehicle, as the biker is approaching turns makes a left from its point of. And crosses the path of travel in front of the biker and the biker doesn't have the ability to stop or avoid anything because the intersection is covered and there's no time the vehicle pulls out too quickly.
Cam: And so that's the left and the lethal, I think you can imagine is the collision itself. How can you avoid the lethal left personally? When I'm riding, I watch the tires of vehicles in that situation that are in the intersection off to my right, especially when I'm going down a two lane highway and maybe they're off on a county road waiting to come on.
Cam: Sometimes people will look at you and you'll look at them and you'll think that they see you, but it's like, they look through you and they actually don't see you at all. So I don't trust them. I don't trust their eyes. I don't trust with it. But I watched the tires of their vehicle and see if their tires start moving.
Cam: If their tires start moving, I'm slowing down. Actually I'm slowing down more. Cause every time I get into that situation, I want to calculate how much time is going to take me to actually slow down enough to avoid this or stop. And I'll just slow down as I'm seeing it until I get close enough that vehicles not moving yet, where I'm going to go past before that happens.
Cam: They're they're holding still and I've got confirmation that, that it can't happen yet. That's what I do to avoid it. And I think that's about what anybody would have to do to avoid it. Some people aren't going to want to ride in a way where they are slowing down like that, which I understand I'm kind of a conservative writer, a lot of the time.
Cam: Um, So, if you're not interested in adjusting your speed at a bare minimum, you can, you can help yourself a lot by paying attention and watching the wheels of that vehicle to see if they start moving as you get close and keep in mind that after you get close enough, those wheels can start moving and it can be a bit frightening, but when you're close enough, they're going to have.
Cam: Build the momentum to come in behind you. And sometimes that's what's going on, but time and experience will teach you that unless you die first, which I hope you don't.