| LIABILITY ISSUES
Q. Am I responsible if someone has an accident in my home or
on my property?
A. The question of legal responsibility hinges on whether your
negligence or carelessness
contributed to an accident or injury. Homeowners are liable only if a
court finds them in
some way negligent (though many settle before this point if they or their
insurer believes
that a court would find them negligent). For example, a homeowner might
be considered
responsible if someone slips and falls on his icy sidewalk. Other common
injuries and
negligence suits involve power lawn mowers, swimming pools, boats, and
other
recreational vehicles. Most homeowners carry insurance, and the insurance
company
generally handles any claims against the homeowner. It is only when the
insurer believes
the claim is unreasonable that the matter is likely to land in court.
Even then, the insurer
will furnish the attorney and pay any damages awarded (up to the limit
of the policy),
along with court costs.
Still, facing a lawsuit and going to court is no fun. Lawsuits involve
months of
depositions, motions, and counter motions before the trial even gets started.
Even after a
verdict is rendered, a party may appeal and the battle could go on for
years. As a
homeowner, you are far better off both preventing injuries on your property
in the first
place and protecting yourself with a solid insurance policy in the event
the unavoidable
and unexpected does occur.
Q. Am I responsible for anyone who enters my property?
A. Historically, the law identified various categories of people
who might be injured on
your property, and the category of the injured party dictated the homeowner’s
duty of
care. Although in a few jurisdictions a trespasser is still categorized
separately from
“lawful” visitors, the courts in most states hold property
owners to the same standard with
respect to everyone: a duty to employ reasonable care in maintaining your
property and to
warn people of hazards. This means, for example, that if you permit someone
to pick
gooseberries on your property, you are obliged to warn the berry picker
that the local gun
club is holding target practice nearby.
Generally, courts hold homeowners responsible only if they are in some
way
negligent. The law does not expect the homeowner to guarantee that someone
visiting his
or her house will not get hurt. But it is the homeowner's responsibili’y
to take reasonable
care to protect people from known hazards.
Liability Risks
Negligence is usually the basis of a liability suit. Take steps to
avoid the conditions that
would prove carelessness. Some examples of cases in which a court
might find you
negligent:
• failure to maintain your property or creation
of a condition that may result in injury or
damage to someone else's property;
• knowledge of a hazard
and lack of intent to eliminate the hazard, erect barriers, or
warn people who enter your property;
• lack of care in maintaining
or creating hazards that might attract children;
• actions
or inaction that might cause damage to your neighbors' property. |
Q. What happens if someone is injured on my property and we are
both at fault?
A. While your best defense to any charge of negligence is that
you exercised due care,
there are several other defenses available. In some cases, a jury may
decide that although a
homeowner was partially responsible for what happened, the person injured
was also
partially responsible. This is called "comparative or contributory
negligence." For
example, if you forget to tell your houseguest that you have just dug
a pit in your back
yard for the new septic system, and the guest decides to get a breath
of fresh air and
wander around in the back yard in total darkness, a jury might find both
of you partly
responsible for your guest's broken leg. In that case, the jury might
reduce the amount of
the damage award you might otherwise have to pay.
In other cases, the jury might decide to absolve you of any responsibility
because
of what the law calls "assumption of risk." For example, when
a Georgia homeowner and
his neighbor were trying to get rid of a nest of wasps, the neighbor climbed
a ladder and
sprayed the nest with insecticide. The wasps swarmed out, and the frightened
neighbor fell
off the ladder. When he sued the homeowner for the resulting injuries,
the court ruled that
the neighbor knew perfectly well that wasps tend to swarm, yet he assumed
the risk.
Accordingly, the homeowner was not liable.
Q. What is the difference between natural and artificial hazards?
A. Generally, courts do not hold homeowners liable for injuries
stemming from natural
hazards such as lakes and streams, even if a child is hurt, unless some
other negligence is
involved. Homeowners are more likely to be responsible if the hazard was
created
artificially. For example, a man who was pushing a child on a tree swing
while attending a
barbecue in New York stepped back onto a rotted plywood board covering
a sewer trap,
which gave way under his weight. A court found the homeowners liable because
they
knew about the danger and made it worse by hanging the swing where anyone
pushing a
child on it would have inevitably stepped on the rotted cover.
On the other hand, take the case of a Nebraska man who just finished shoveling
snow off his driveway in the freezing mist. While he was inside getting
some salt to finish
the job, the mail carrier slipped and fell on the driveway. The mail carrier
sued, but the
court ruled the homeowner was blameless because he did not create the
hazard and was
doing his best to eliminate it.
Q. What about liability in regard to children?
A. The law concerning a property owner's responsibility for children,
even when they are
trespassing, has changed over the years. In 1901, when a five-year-old
drowned after
falling into a water-filled uncovered excavation, the court ruled that
because the child was
a trespasser and the property owners didn't know there were children around
the pit, they
weren't liable. Even then, however, another legal doctrine was evolving,
stemming from
injuries caused to children playing on railroad turntables left unsecured
in areas frequented
by the public. In a series of late nineteenth-century cases involving
such injuries, the
courts found the railroads negligent. The courts ruled that some dangerous
places look like
such fun that landowners should expect children to come play.
The law calls these "attractive nuisances." Even though an uninvited
child
wandering into your yard to inspect the swimming pool might well be a
trespasser, the law
says you have a special duty to erect barriers to protect children from
harm's way. That's
why the Supreme Court of Georgia recently refused to dismiss a case against
the owners
of a swimming pool where a two-year-old drowned. The swimming pool was
in the side
yard of their home on a corner lot, three blocks from an elementary school.
The yard and
swimming pool were not fenced in, and the pool had both a diving board
and playgroundtype
slide.
Another case involved a Michigan family that stopped at a private home
to buy
raspberries. While the adults were talking, two preschool boys wandered
into the garage,
where they found a loaded gun and one boy shot the other. The court ruled
that although
homeowners cannot be expected to make their homes childproof, those who
have reason
to expect children to come around--such as the couple who sold raspberries
from their
home--should expect children to act on childish impulses and should take
steps to protect
them.
The message is clear: If there is a way in, the child may find it and
may get injured
and you may be liable. That is why precautions such as fences, locked
gates, and
swimming pool covers--and good liability insurance--are so important.
Q. Am I responsible for damage caused by my children?
A. As a rule, parents are liable for injury and damage caused
by their minor children
(eighteen years of age and younger). Usually, such damage caused by children
thirteen or
under will be covered by your homeowner's policy. In many homeowner's
policies,
damage and injury are not covered if the children are older than thirteen
and intentionally
cause the damage or injury. The best way to avoid liability is to teach
your children to
respect other people and their property.
Recreational Use of Property
If you own a lot of land and allow someone to use it free of charge
for hunting, fishing,
skiing, or some other recreational activity, you are probably not
liable if the person gets
hurt. In the 1970s, virtually all states enacted "recreational
use statutes," designed to
encourage people to open their land for recreational use without fear
of liability. The
statutes do not protect you if you charge a fee or if you're malicious
in your failure to warn
of hazards. For more information about such statutes in your area,
contact a local attorney. |
Q. If I host a party in my house, am I liable for my guests'
actions?
A. Some courts have ruled that a host is not responsible for
the conduct of guests, unless
your parties routinely turn into brawls. Likewise, if one of your guests
is horsing around
and hurts himself, you probably will not be liable. But you might be liable
if you let your
guest drink too much, then put him into his car and send him out on the
highway. That is
what happened in a landmark New Jersey case, where the homeowners had
been drinking
whiskey for a couple of hours with one of the husband's subcontractors.
They walked him
to his car, saw him off, and called shortly to see if he'd made it home.
He had not.
Thoroughly drunk, he was in a head-on collision in which a woman was seriously
hurt.
The case went to the state Supreme Court, which held the hosts liable.
It is a lesson worth
remembering. Host liquor liability insurance policies are available.
Q. What about liability concerning my pets?
A. The law holds people responsible for the actions of their
pets. Most states have socalled
"dog-bite statutes," holding owners legally liable for injuries
inflicted by their
animals. If your state has no such statute, you may still be found liable
under the commonlaw
rule that owners are legally responsible if they knew the animal was likely
to cause
that kind of injury. You may also be found liable if you violated a leash
law or a
requirement to keep your pets fenced.
Many states and municipalities also have enacted "vicious dog statutes,"
which
enable an animal control officer or a judge to declare a particular dog
or specific breed of
dog vicious and require the owner to confine the dog securely or muzzle
it in public. Some
states make it illegal even to own a breed of dog that has been declared
vicious. Some
cities have imposed an outright ban on all pit bulls, which they consider
inherently
vicious. Many jurisdictions ban wild animals such as wolves, bears, and
dangerous snakes
from being kept as pets.
If you own a dog or another animal that might injure someone, call your
locality's
animal control office to find out the laws in your area. Know your pet's
temperament and
keep it out of the path of strangers. Keep vaccinations current, and post
warning signs if
you think your pet might injure someone. These signs should be prominent
and
straightforward, such as "Beware of Dog," so people are clearly
informed of the danger
involved. However, the signs may not absolve you from liability if a child
climbs into the
yard and the dog gets out.
Q. Can I be held liable if my tree falls on my neighbor's house?
A. Traditionally, property owners were not responsible for damage
caused by falling tree
limbs and other natural occurrences on their property. However, they were
responsible for
damage caused by artificial conditions, such as a loose board from your
lumber pile being
carried by the wind through your neighbor's plate glass window. The current
trend
suggests that the courts are applying an ordinary standard of care/negligence
in both cases.
This means that maintaining your property in good condition is an important
protection
against a negligence suit.
For example, if your trees have visible rot, you should cut them down
or trim
rotted limbs before they can fall on your neighbor's property. Trees should
be maintained
well enough that, short of a tornado or hurricane, the wind won't blow
things from your
place over to your neighbor's.
If you excavate near the property line and cause your neighbors' land
to sink, you
may be liable whether or not their house is affected. Check with a civil
or geological
engineer if you think you have reason to be concerned. Your builder or
contractor will
know of one, or you can find one yourself through the Yellow Pages.
Similarly, if changes you make to the contours of your land cause excess
rain
water to pour onto your neighbor's property and result in damage, you
may be liable. If
you are planning to change the contours of your land, ask an attorney
or your local
building inspector about your state law.
Q. Are there other areas to be concerned about liability?
A. Basically, if you're acting reasonably and responsibly, maintaining
your property and
carrying homeowner's insurance, you shouldn't fret about liability. If
you're planning any
changes to your property, however, you should investigate local laws to
ensure that any
changes will not violate them. The following areas can hold special concern:
• Waterfront areas. If you live along a river or stream, state and
local laws designed to
protect wildlife habitats may preclude your clearing brush or changing
the lay of the
land. Do not act without checking with your department of conservation,
natural
resources, or wildlife, usually located in the state capital.
• Pollution. You could be liable for the cost of cleaning up pollution
stemming from
underground oil tanks or old dump sites on your property, whether or not
you caused
the problem in the first place. Look into this before you buy a piece
of property,
because there is not much you can do about it afterward. Ask the seller
if there are any
such problems, and have your attorney include a clause in your purchase
agreement
that covers you in the event such problems arise. If there is special
concern because of
the unique nature of the property, you might even consider hiring an environmental
consultant.
• Wetlands. Federal laws govern the draining and filling of wetlands.
If you have places
on your property that are boggy even part of the year, avoid serious legal
trouble by
finding out what your responsibilities are before making changes. You
might start with
your state's department of environmental protection, probably located
in the state
capital. The federal Office of Wetlands Protection in Washington, D.C.,
also might be
able to help.
• Utility lines. As a rule you are not liable for maintenance of
utility lines crossing your
property, but to be safe don't do anything to cause potential damage to
them, such as
planting fast-growing trees under them.
Q. What should I do if someone is injured on my property?
A. First and foremost, do all you can to help--express concern,
ask what injuries might
have been suffered, make the victim as comfortable as possible, call for
medical
assistance, etc. Do not, however, say anything to suggest or admit guilt
or negligence.
While it is natural to empathize with the injured party and want to soothe
any pain and
suffering, as well as your own feelings of guilt, it is not a good idea
to complicate your
potential liability with such statements. Rather, leave it up to the law
to decide who was
responsible.
Notify your insurer in writing (and speak to your attorney) as soon as
possible. Do
not talk with the other party or their attorney about liability until
you have taken these
steps. You may well decide later to offer to defray some medical bills
of the injured party,
but do this after you have had the chance to review the situation with
a clearer head and
the appropriate parties.
There is one other situation where the law requires you to act. If someone
has been
hurt on your property or is in danger, you may have a legal duty to offer
humanitarian aid
even though you had nothing at all to do with the injury. For example,
a Minnesota cattle
buyer became severely ill while inspecting a farmer's cattle. A court
later ruled that the
farmer had a duty not to send the man, who was helpless and fainting,
out on the road
alone on a cold winter night.
A Checklist for a Safe Home
• Repair steps and railings.
• Cover holes.
• Fix uneven walkways.
•
Install adequate lighting.
• Clear walkways of ice and snow
as soon as possible.
• Be sure children do not leave toys
on steps and sidewalks.
• Replace throw rugs that slip or
bunch up.
• Reroute extension cords that stretch across
traffic lanes.
• Repair frayed electrical cords.
•
Keep poisons and other hazards out of the reach of children, even
if you don't have
children.
• Warn guests about icy conditions and other hazards.
• Restrain your pet.
• Erect barriers to your swimming
pool; an automatic pool cover or a tall fence with a
good lock that you lock, and an alarm on any door leading to the pool.
• Remove all guns or keep them securely locked and out of sight,
where children cannot
see them or gain access to them.
• Remove nails from stored
lumber; secure any lumber piles.
• Don't leave ladders standing
against the side of the house or garage.
• Don't let children
stand nearby when you mow the lawn.
• Don't let your guests
drink and drive or drive under the influence of drugs. |
Liability Insurance
Q. What is liability insurance?
A. The liability portion of your homeowner's policy is designed
to cover unintentional
injuries on the premises and unintentional damage to other people's property.
In other
words, injuries caused by your negligence are covered; those you inflict
on purpose are
not covered. Given your potential liability as a homeowner, you are asking
for trouble if
you do not carry adequate liability insurance. It takes only one person
who is seriously
injured by your negligence to generate a huge liability award and deplete
your financial
nest egg, not to mention your psychological well being.
Q. What kind of liability coverage is provided by a typical homeowner's
policy?
A. A typical homeowner's policy includes $100,000 of liability
insurance, which won't go
far if someone is severely injured. For a slight increase in premium you
can raise that to
$300,000 to $500,000, and some companies offer coverage of $1 million
or more.
Typically, coverage includes harm caused by your children and pets, except
intentional
harm if the child is over thirteen. If your pet attacks people routinely,
the insurer may
cancel your policy or refuse to renew it.
Most standard homeowner's policies do not cover:
• employees and clients of your home-based business, including the
children in your
home-based day care if you take in more than three children and have no
special
endorsement;
• claims by one member of the household against another;
• any disease you pass on to someone.
Workers' Compensation
If you have a home-based business that involves people coming to your
house, be sure to
obtain a separate business rider. Also, if you have a swimming pool
or other special
hazard, check the policy provisions to make sure you're covered. If
you have domestic
employees, even part-time help such as nannies, you may be required
to carry worker's
compensation insurance, which costs a little more than $100 per year.
Worker's
compensation sets limits on awards; if you don't have it, you could
have to pay far larger
damages, and there may be civil and criminal penalties if you don't
carry it. Contractors
working on your house should already have workers' compensation for
their employees.
You should ask to see proof of such coverage, and don't hire them
if they don't produce
sufficient verification or don't have adequate coverage. |
Q. What is an "umbrella" liability policy?
A. An umbrella liability policy, also called a "personal
excess liability" policy, is designed
to protect you in case of a big judgment that would quickly eat up your
regular policy
coverage. These policies are relatively inexpensive because the insurers
are betting you'll
never need to file a claim. Their coverage takes up where your home and
auto policies
leave off; thus you will need to have certain levels of basic home and
auto liability
insurance before you can qualify for an umbrella policy. Generally, these
would be
$100,000 in liability coverage on your homeowner's policy and $250,000/$500,000
on
your auto ($250,000 per person, $500,000 per accident; or sometimes $300,000
in singlelimit
coverage)
You also have to meet certain eligibility requirements, such as owning
no more
than four cars. If you've been convicted for driving under the influence
of alcohol in the
past three years, you are not likely to get approved for coverage.
Some umbrella policies pay the deductible amount that isn't covered by
basic
policies. Others impose a deductible, called a "retained limit,"
in certain circumstances.
For example, if your homeowner's policy doesn't cover slander or libel
(most don't without
a special endorsement), an umbrella policy with a retained limit might
require you to pay
the first $250 of a judgment for slander. The other kind would pay from
dollar one. Note
that most umbrella policies don't cover injuries you cause with your motorcycle
and
certain watercraft, such as high-powered speedboats.
Your premium for the umbrella policy will be determined based on the number
of
houses, rental units and vehicles you own. If you have one house and two
cars, a typical
premium costs $100-150 for $1 million in coverage. You will get $2 million
in coverage
for only about $50-$100 more in premium costs.
Who Needs an Umbrella
Policy
People usually determine their need for umbrella liability coverage
not so much by how
many hazards they have on their property as by the assets they have
to protect. After all,
the wealthier you are, the more you have to lose if someone is injured
on your property.
Some people buy $5 million in coverage, and some even take out umbrellas
over their
umbrellas. Consult your insurance agent to help decide what type and
amount of coverage
is best for you. |
Is Your Home a Firetrap?
The majority of house fires are caused by improper maintenance or
use of heat sources or
electrical appliances, or careless use of smoking materials. Fatal
fires occur most often
when there is no functioning smoke alarm to wake everyone. So take
a few precautions to
avoid becoming another fire death statistic.
• Keep combustible
materials away from your furnace, wood stove, or other heating
device.
• Use the proper fuel for the appliance. For example,
don't rekindle your wood stove or
kerosene heater with gasoline.
• Check electrical cords
and replace them if they're frayed.
• Periodically have
an electrician check your wiring to make sure it is safe.
•
Make sure matches, cigarette butts, and ashes are extinguished before
you go to sleep.
• Install a smoke detector on each level
of your home near the stairwell. Test them
regularly to make sure the batteries are fresh.
• Teach
everyone in your family how to escape safely in case of fire:
- Drop and crawl because the good air is near the floor, test doors
for heat before
opening them, and don't be afraid to break windows to get out.
- Arrange a meeting place outside so no one goes running back into
a burning
house to rescue someone who's already safely outside.
|
|
