It is often the case that a Plaintiff who suffers a slip-and-fall or trip-and-fall injury names several adjoining property owners as defendants in a lawsuit. This occurs when the Plaintiff is unsure whose property he or she fell on, or is unclear exactly where he or she fell. Faced with this uncertainty, the Plaintiff sues the owners of all the adjoining properties. This is akin to what one does when making spaghetti: throw everything up on the wall and see what sticks.
This strategy of naming multiple defendants in the lawsuit—some of whom have no responsibility whatsoever for the Plaintiff’s injury—protects the Plaintiff from inadvertently violating the statute of limitations. However, it also unnecessarily drags innocent property owners into litigation that will likely include cross-motions, pointless discovery exchanges between parties, and lengthy depositions. In other words, it amounts to a waste of both time and money for innocent parties.
A good strategy for defense counsel to use when defending a lawsuit that involves a claim of a fall “somewhere” amongst adjoining properties is to hire a Land Surveyor. Immediately. Doing so will conclusively identify the boundaries of your client’s property and where each co-defendant’s property lines begin and end. The Land Surveyor should be required to create duplicate photos of the same area, one with property lines and one without, as shown below.
Photograph 1
Photograph 2
Why is this important? When the time comes to depose the Plaintiff, defense counsel should question Plaintiff using Photograph #1. The key is to have Plaintiff mark exactly where he or she fell on Photograph 1, and he or she must unequivocally state the same under oath. Any mark the Plaintiff makes outside of your client’s property line is a win. Plaintiff’s counsel should thereafter stipulate to dismiss your client from the lawsuit. If he or she refuses to do so, you should strongly consider filing a Motion for Summary Judgment supported by your Land Surveyor’s affidavit and Plaintiff’s testimony.
Sometimes defense counsel knows in advance that the Plaintiff did not fall on the client’s property. For example, a fact witness who saw the Plaintiff fall might testify to the location of the fall, stating that it appeared to be on the property of an adjoining landowner. Reliance on this testimony alone will not necessarily win the day. If Plaintiff or another fact witness offers contradictory testimony, this just becomes another question of fact, one for a judge or jury to determine at some future date. Also, Plaintiffs’ attorneys are unlikely to let your client off the hook because a third-party fact witness has testified that the Plaintiff fell somewhere other than your client’s property. But if the Plaintiff unwittingly offers testimony that he or she fell in a location that is not within the boundaries of your client’s property, then Plaintiffs’ attorneys have been painted into a corner.
It is important to note that Plaintiff should not be shown Photograph #2. The photograph with property lines is for Defendant’s purposes only. Also, at times defense counsel knows in advance that the location where Plaintiff fell is very likely within the boundaries of his client’s property. Using the approach described herein at Plaintiffs deposition can nonetheless be useful because it narrows the issues to be determined throughout the course of litigation. Any narrowing of the issues in dispute gives the direction of the litigation focus and serves to eliminate unnecessary defense costs. Therefore, when there are adjoining property owner defendants in a lawsuit, the strategy of hiring a Land Surveyor may prove useful and a cost-saver even if the Plaintiff likely fell on your client’s property.
Damian M. Sammons is a trial attorney whose practice is primarily focused on the defense of toxic torts, including asbestos and talc, product liability and commercial and general liability claims. He began his career as an Assistant District Attorney in Philadelphia and now serves as Senior Counsel at Hickey Smith Dodd LLP, a process and data driven law firm that is designed to deliver legal services with more value.
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