Injury occurred on property - liable?

[poohbear]

Hello,
I'm in Washington State. An elderly neighbor living next to a private community pool (of which he was not a member) came over to the property (uninvited & unannounced) while several men were working on the property to get it ready for opening day. He had an angry conversation with one of the men working near the pool (the pool association president) about some bush trimming they were doing that he felt negatively affected his property. During this conversation, he became entangled in the hose on the ground and began to stumble. The pool association president reached out to steady him, but he threw off his attempt and did fall. The other men working came over after the fall and saw that his feet were still tangled in the hose. We don't think any of those men actually witnessed the fall.

911 was called, he was taken to the hospital, and is presently recovering from surgery to repair a broken hip. He told his family (and filed a police report!) that the pool president "pushed" him (although this statement was not made at the time of his fall). The pool president said he did not touch the man until he began to lose his balance. This man has a history of repeated complaints over the past 10 years about pool activity & noise.

My questions are:

1) If he filed a police report, can we assume that he is "pressing criminal charges?".

2) If so, does the police then get statments/gather evidence to determine if there is probable cause for an arrest? or do they just take his word for it and do what with it?

3) If (hopefully) criminal charges are not issued, can he bring a winable civil suit against the pool association for the injury? To clarify, this is private pool association property that he came onto without invitation or permission, seeing obvious equipment laying around as part of the cleanup. There were no defects or spills on the concrete.

Thank you so much for your time and consideration.

 

[Tracey]

1. Filing a report does not mean he will press charges. If he doesn't want to bother with a trial, he may encourage the PA to drop the case. The PA will gratefully say OK and move on to case #134 of the week.

2. Police don't assume the first person they talk to is the one telling the truth. Police will talk to the parties/witnesses and may take a look at his past pattern of complaints against the pool. However, the guy's statement is sufficient to support an affidavit of probable cause & information for assault. If the PA presses charges, the jury will hear all about the guy's past complaints and decide who they believe.

3. I don't know whether a trespasser/licensee/invitee can sue a property owner over an open and obvious hazard. It's been too long since the bar for me to remember that little tidbit of info! I'll try to hunt down the answer this week.

Note: Pleading guilty to assault or entering an Alford plea will make the association president liable for a civil assault suit.

In which county did the fall occur?

Tracey

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This is not legal advice and you are not my client. Double check everything with your own attorney and your state's laws.

 

[lars coltrane]

The case you describe may not be only a case of premises liability. If the plaintiff's lawyer decides that the better theory is unlawful touching (he pushed me) the condition of the property is no longer the central issue. Since I don't know the law of your state, I am not commenting on the trespass aspect; it may or may not be important.

 

[poohbear]

This occurred in Pierce county.

I keep thinking of only the property liability angle because the man definately was not pushed, and I keep thinking that will be obvious once questions are asked.

 

[lars coltrane]

Thank you for the follow up. In the end, I am sure that the truth will come out.

 

[Tracey]

Hey Poohbear, I got a chance to consult the Washington Deskbook on property law. Summarized, it says:

Washington rejects the modern trend towards a uniform standard of care for invitees, licensees, and trespassers. The duty of care owed a person on another's land depends on the person's status and the nature of the hazard which caused the injury.

An invitee is 1) a member of the public invited to enter or remain on the land for a purpose for which the land is held open to the public or 2) a business visitor who has entered or remained on the land to do business with the owner. Invitees include: UPS delivery personnel when they're on the driveway/sidewalk, bowling alley patrons, & repairmen. A landowner must exercise reasonable care to make the invitee safe from conditions the invitee is unlikely to discover him/herself.

A licensee is a person who enters or remains with permission or tolerance of the owner for his/her own benefit, not for the owner's benefit or business purposes. Ex: kids taking a shortcut across the lawn. An owner must disclose known dangers not likely to be discovered by the licensee.

A trespasser is someone who enters or remains without permission & not in performance of a duty to the owner. The owner must refrain from causing willful or wanton injury to the trespasser. (No traps)


Here, the hazard was open and obvious and the neighbor knew about it because he stepped over the hose to talk to the men. Therefore, there is no property owner liability. Restatement (2d) of Torts, sec. 343A(1); Ford v. Red Lion Inns, 67 Wn.App. 766, 840 P.2d 198 (1992), review denied, 120 Wn.2d 1029 (1993).


Neighbor's lawsuit will have to be based on theories of battery (pushing) and agency (Pres. was acting as assoc. agent when he pushed neighbor).


Best,
Tracey

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This is not legal advice and you are not my client. Double check everything with your own attorney and your state's laws.