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The following is a copy of a presentation made by Steven M. Watson to Nebraska trial attorneys continuing legal education seminar on October 3, 2008. WHAT TO DO WHEN YOU HEAR:
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1. That the defendant either created the condition, knew of the condition, or, by the exercise of reasonable care, would have discovered the condition; |
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2. That the defendant should have realized that the condition involved an unreasonable risk of harm to such lawful entrants; |
3. That the defendant should have expected that lawful entrants such as the plaintiff either:
a. would not discover or realize the danger; or
b. would fail to protect themselves against the danger;
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4. That the defendant failed to use reasonable care to protect lawful entrants against the danger; |
5. That the condition was a proximate cause of some damage to the plaintiff; and
6. The nature and extent of that damage.
Therefore, what is reasonable? This is an empty box. The jurors will use their limited idea of common sense to fill in what they think is reasonable. If there is ambiguity, confusion, or complexity the jurors will invent their own standard of what is reasonable based upon their limited world experience, and not the facts of the case.
In the legal context "reasonable" refers to "conforming with established standards or rules." Our job is to fill up the empty box of "what is reasonable." We are attempting to make an ambiguous standard more specific and more meaningful.
III. OPENING STATEMENT: The Confidence Builder for the Jury.
Our goal is to be able to say in opening statement to reassure to the jury that we will provide them with the tools to decide the case in our favor:
"There are principles and standards for handling a premises liability case that are just as basic and commonly understood as the rules of the road for driving a car. We all know the rules for driving a car. To understand this case, and to understand how to make the right decision in this case, you need to understand these principles and standards.
You will hear during this trial that these principles are not controversial. Every reputable commercial property owner understands, agrees, and follows these principles.
As you look at these principles and think about them, you will see that they are fair and they make sense."
The use of the rules approach by Friedman and Malone is compatible with the David Ball approach to trying cases to a jury. The plaintiff's opening statement outline per David Ball is as follows:
1. What are the rules?
"The rule is if you are not careful, and someone
is injured, then you must pay for the harm caused."2. What did the property owner do or fail to do?
3. What were the immediate harms?
4. Who and why are we suing?
5. How were the rules broken?
6. Who broke the rules?
7. How did it harm?
8. What is wrong with the defense?
9. What are the consequences of the immediate harms?
IV. FINDING THE RULES: Where Do We Go to Find These Principles and Guidelines?
We are looking for principles and standards that require the dispute to be resolved in the plaintiff's favor. These principles, guidelines, and standards can be developed from ideas obtained from the following:
- Statutes and Regulations.
- Case law.
- Contracts between the relevant parties.
- Jury instructions.
- Testimony from experts.
- Policy and procedure manuals.
- Training manuals.
- Quality control procedures and operation manuals.
- Admissions in pleadings.
- Professional literature.
- Industry guidelines.
- Mission statements.
- Ethical codes or guidelines.
- Common sense/moral imperative.
- City zoning ordinances.
- Americans With Disabilities Act Accessibility Guidelines.
- Handicap access laws.
- Lease language.
- Housing codes.
- Restatement (Second) of Torts.
We need to fire up the conservative/parent/republican portion of our brain. We must think like a conservative. "If you don't follow rules, you suffer the consequences, and it's your own fault!"
Our goal is to get everyone to agree with these principles. If the principles were violated then it is difficult for the defense lawyer to show the jury that the defendant was behaving reasonably.
The rules should be literally impossible to credibly dispute. We are making an ambiguous standard more specific and more meaningful.
We want to give the jury the talking points to change the thought process from: "Was the defendant reasonable" to "Was customer safety a priority concern of the defendant."
We want to shift focus from whether the defendant was reasonable to whether the defendant was doing all of the action verbs listed in the rules of the road. Not all of the ideas listed below will be a rule of the road. Friedman and Malone state that a rules must be easy to understand, not credibly disputed, actually violated by the defendant, and important enough to significantly increase the chance of a plaintiff's verdict.
V. SOME PRACTICAL EXAMPLES: "Would You Agree That . . ."
Consider asking the general manager, property manager, or appropriate decision maker if he or she would agree with the following "talking points" or foundation for creating some "Rules of the Road."
A property owner must be on the lookout for conditions which may harm customers.
. . . think about the changing conditions on the property which affect customer safety.
. . . understand that customers are usually looking at the merchandise for sale in the store and not on the floor.
. . . understand that customers may not always quickly notice changing conditions on the floor.
. . . realizes that a hazard is a condition which presents injury potential.
. . . understands that a risk is a probability of injury.
. . . understands that danger is the unreasonable or unacceptable combination of hazard and risk.
. . . appreciates that any risk of serious injury or death is always unreasonable and always unacceptable if reasonable accident prevention methods could eliminate it or minimize it.
. . . realizes that if a safety measure is technologically feasible it should be considered.
. . . expects that in a retail business that if a safety measure is economically feasible it should be considered.
. . . strive to reduce the risk of injury as much as reasonably and economically possible.
. . . realizes that there is not a maintenance item that would have been overlooked if there was a proper checklist in use by management.
. . . anticipate the routine actions of the customer while shopping on the premises.
. . . strive to realize that customers may not discover a hazard on the property while shopping.
. . . strive to realize that all customers may fail to protect themselves against changing hazards on the property.
. . . strive to realize that a shopping customer looking at merchandise may fail to protect themselves against a changing hazard.
. . . understand that he must take certain steps to protect the customers against hazards which arise from time-to-time.
. . . think about harms to customers which are foreseeable and possible.
. . . think about the existing circumstances under which the customer entered the store.
. . . think about the general purpose for which the customer entered the store.
. . . think about the manner under which the customer entered the store.
. . . think about how the premises are being used in focusing the attention of the customer on what is happening in front of the customer, and not what is on the floor.
. . . think about the inspection procedure to be used.
. . . think about whether warnings are to be given.
. . . understand that a warning is never adequate if the hazard or danger can be otherwise reduced or eliminated.
. . . realize that the purpose of the warning is to give the customer an informed choice to come in or stay away.
. . . appreciate that the purpose of the warning is to tell the customer that the owner could not minimize or eliminate the risk.
. . . have in place a procedure or process to help him learn of conditions on the property as soon as possible.
. . . take active steps to learn as soon as possible of changing conditions on the property.
. . . should be aware of the standards and procedures used by similar facilities to inspect its floors.
. . . have a specific procedure in place to provide real meaning of the term "regularly inspected."
. . . should anticipate that people will fail to protect themselves despite the open and obvious risk.
. . . should realize that he who creates a hazardous condition has actual or constructive knowledge of the hazardous condition.
. . . should anticipate that the dangerous condition may cause physical harm to the invitee, notwithstanding its known or obvious danger.
. . . can anticipate that the invitee's attention may be distracted, or he will not discover what is obvious.
. . . can anticipate that the invitee may forget what she has discovered, or fail to protect herself.
. . . can anticipate or realize that the invitee will proceed to encounter the known or obvious danger because she may believe that the advantages of doing so would outweigh the apparent risk.
. . . agree that warning is one of the available ways of protecting an invitee.
VI. NORM THEORY: Why We Need the Rules of the Road.
To identify the cause of an accident, people tend to select a prior event which they can most readily "undue" in their imagination.
"If only the plaintiff had acted otherwise, the accident would not have happened."
The prior event most readily undone is the one which appears most unusual or deviant relative to what people believe to be the norm for that kind of situation.
"Customers must watch where they are going, and if they slip on something it's their own fault."
However, the more unusual the jurors perceive some event preceding the accident to be, the more likely jurors are to think that the accident need not have happened, should not have happened, and the person causally connected with the accident should be blamed.
So what is so unusual about not watching where you are walking and slipping on the water in the store? We need to change the focus from the usual customer thinking about the merchandise, to the manager who did not follow the accepted rules. We expect the defendant to know the rules and follow the rules.
VII. HABITS OF EVERYDAY THINKING:
We must use social psychology to understand the challenge to persuade the jurors. Social science research shows that people have four (4) major habits of everyday thinking. The defense lawyer refers to them as "common sense." The following habits of mind explain why an appeal to common sense is so seductive for the jurors.
1. Norm Theory: People tend to select as a cause of an event, the prior event which deviates the most from some salient, relative norm.
"Normally, you watch where you are walking"
2. Monocausality: People tend to prefer simple decision-making strategies, including simple causal explanations.
"She should have watched where she was walking"
3. Culpable Causation: People tend to assign more causal responsibility to an act than the more blameworthy the act is.
"Time to get morality on our side"
4. Fundamental Attribution Error: People tend to attribute the behavior of others to those others' character traits rather than to the circumstances.
"He acted that way because he's that kind of guy"
The accident was caused by a single deviant or "bad" act for which a "bad guy" is to blame.
Who's the bad guy? The plaintiff. What was the bad act? Failed to watch where she was going. It is easy to blame the plaintiff. It takes a lot of mental effort to find the reasons why the defendant was at fault. VIII. CONSERVATIVE JUROR PERCEPTION: Good Corporate Defendant, Bad Plaintiff.
The Defendant: The corporation owning the land provides jobs, stability to our community, income to employees, and goods and services to its customers. It is successful because it follows rules and guidelines. Its continued existence and financial help is a good thing for our community. It behaves normally and routinely day-to-day. All the employees do their normal day-to-day jobs.
The Plaintiff: The injured person is the deviation from the norm. The plaintiff got hurt because the plaintiff was not careful, and did not see what was in plain sight. The plaintiff and her lawyer want money. They will lie and manipulate the facts to get money from the system. The plaintiff represents what is deviant.
IX. THE SOLUTION: Norm Theory Turned Around.
The rules of the road will give us "talking points" to argue that the defendant was the deviant actor and the plaintiff was the norm.
The rules of the road will prepare an outline for the plaintiff's lawyer to develop ideas to put in the empty box of what is reasonable. This then develops the outline of the unreasonable behavior of the defendant.
The rules of the road admissions will now be used to fill up the empty box which the jurors believe is their common sense. The jurors now have some tools to use to discuss in deliberations why the defendant property owner was the deviant actor in the melodrama and that the plaintiff was behaving normally. The plaintiff was merely shopping in the store trying to help the economy move forward. The landowner/tenant was the one who did not follow the rules.
X. CONCLUSION
We cannot win our lawsuits unless we ourselves follow the rules of the road for trying jury cases. We must be students of the profession and practice on the leading edge. Friedman and Malone teach us how to give the jury the reasons for the plaintiff's verdict, David Ball teaches how to speak like a master to the jury, and Neal Feigenson teaches us why the jurors need the framework of the rules of the road to overcome the defense attorney's appeal to common sense.
Thank you for your time and may the Rules of the Road help you prevail.