Plaintiff’s lawyer? Defense counsel? Many attorneys in private practice wind up doing some of both. In fact, many highly successful plaintiffs’ attorneys began their careers at insurance defense firms. When I started practicing law in 1985, I worked for an insurance defense firm, primarily representing restaurants, hotels, big-box retailers, apartment complexes, and several large grocery chains handling their premises liability claims.
When I opened my own practice in 2003, I started doing more on the plaintiff’s side but was still primarily a defense lawyer, focusing on premises liability claims for a national grocery chain. Over the course of my career, I have been lead counsel in thousands of premises liability cases, including slip-and-falls and trip-and-falls, negligent security claims, and false arrest and malicious prosecution cases.
One of the advantages of representing both plaintiffs and defendants in premises cases is the ability to see, and think through, both sides of the multiple issues that arise in these cases. This background has also helped me as a mediator of premises liability cases in helping both sides reach a reasonable resolution. Let’s take a closer look at some common challenges both plaintiff’s and defense lawyers face when mediating premises liability cases — and how to address them.
The Elements of a Premises Liability Case
A premises liability case involves the potential liability of a landowner (or occupier) due to an invitee being injured while on the owner’s property. While state laws vary slightly, most, if not all, states place a duty on property owners and proprietors to exercise some degree of care to keep invitees on their property safe from preventable injuries.
In its most basic form, a plaintiff in a Georgia premises case must establish the existence of a hazardous condition on the property that resulted in an injury and that the owner or proprietor had knowledge of the condition, which can be either actual or constructive, that was superior to that of the injured invitee. This constitutes the requisite showing of fault on the part of the property owner that is necessary to find legal liability. Without such a showing of fault, the mere fact that an injury was sustained on the premises is generally not actionable.
Mediating Premises Liability Cases
Premises liability cases typically come to mediation after an answer has been filed and some amount of discovery has been conducted, though pre-litigation mediations are not uncommon. In most cases, the mediation is going to consist of the plaintiff and plaintiff’s counsel, defense counsel and an insurance company representative, and the mediator. Unlike the typical road wreck mediation, a representative of the actual defendant, who may have some skin in the game, may also be present. Given the prevalence of viable liability defenses in this type of case, which can often mean an all-or-nothing outcome at trial, mediation provides a good option for these cases as it can allow both sides to walk away feeling that their positions have been heard and validated.
Common Challenges at Mediation
Attorneys on both sides do face some common challenges before and during mediation. On the plaintiff’s side, it’s crucial to apprise the plaintiff about the potential legal barriers to recovery before mediation. It is not at all uncommon to hear a plaintiff at mediation say, “I fell in the defendant’s store and, therefore, they’re responsible.” Again, just because an injury happened on someone’s property doesn’t mean the owner is liable.
When the plaintiff hears that for the first time from the mediator at mediation, counsel must do a more thorough job of preparing the plaintiff for the mediation session. Sometimes, however, despite thorough preparation, a plaintiff may still have difficulty grasping the concept of proving fault on the part of the defendant, i.e., a hazardous condition and knowledge of the hazardous condition by the property owner. In that event, let the mediator know, either during a phone call prior to the mediation or during a quiet meeting in the hallway outside the plaintiff’s room, that some additional education will likely be necessary.
On the defendant’s side, there is sometimes a perception that every premises case is a summary judgment case, so the insurance representative comes with minimal authority to settle and may only extend authority to settle for the cost-of-defense range. While it is certainly a viable legal strategy to file, or threaten to file, a motion for summary judgment to provide negotiating leverage, it helps to have a realistic expectation of the motion’s chances for success.
If the prospects for success on the motion are slim at best, recognize that and come to the mediation prepared to negotiate. Based on my personal experience, there can often be a difference of opinion between the defense lawyer and the insurance representative about the chances of success on a motion for summary judgment. In that event, it makes sense for the defense attorney to reach out to the mediator ahead of time to discuss how best to address the situation with the adjuster at the mediation.
Be Familiar with Your Case — and the Law
In conclusion, coming to mediation with a realistic evaluation of both liability and damages and a well-prepared client, whether the plaintiff or insurance adjuster, is the best way you can prepare to mediate your premises liability case and provides the best chance of achieving a reasonable outcome for both sides.
*Originally published in the Daily Report and reprinted with permission
