Is mall liable for pedestrian injury if fall occurs in parking lot/roadway?

by D. Go
(New Jersey)

I fell on my way into a mall due to a depression (beginnings of a pot hole) in the parking lot/roadway. I reported it immediately to mall security but did not seek an ambulance since I was able to get up on my own. However I did have visible bruising and other injuries immediately.

I have been under doctor's care ever since (4 months to date). The insurance company for the mall has notified me that they are not assuming liability or accepting negligence because "area of incident was a roadway and not sidewalk on which pedestrians are designated to walk on."

I live in NJ. Do I have a claim against the mall? Does their reason for denying liability hold up? What can I do to pursue compensation from the mall's insurance company (or other liable party) for my injuries and medical bills? Thank you.

Visitor Question:
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ANSWER for "Is mall liable for pedestrian injury if fall occurs in parking lot/roadway?":

D. Go (New Jersey):

You did not describe what injuries you sustained which would require four (4) months of treatment. It would be important to know if your treatment was medical, chiropractic, or therapeutic. In any event, your question about liability is actually a question about Premises Liability. This is a legal doctrine which extends in one form or another across all 50 states.

Under premises liability, property owners are required to do everything within reason to take steps to assure people who are legally upon the property are safe from dangerous conditions which might cause undue harm or injury.

When a property owner knows, or should know a dangerous condition exists, and given a reasonable opportunity to repair or eliminate the dangerous condition, the property owner chooses (impliedly or overtly) to ignore the condition, the property owner becomes liable for the injuries and resulting damages that condition causes.

For purposes of personal injury claims, damages can include medical, dental, chiropractic and therapy bills, out of pocket expenses (for such items as prescription and over the counter medications, bandages, crutches, etc.), lost wages, and for pain and suffering.

While the insurance company can maintain they will not accept liability on behalf of their insured based on their opinion the area where you fell was a roadway, and not on their insured's property, the fact remains, if the pothole was on their insured's property, their insured may be liable for your damages.

However, even if you were able to prove the pothole was located on the insured's property, you will also have to prove the property owner knew, or should have known the dangerous condition existed, and having sufficient time to "cure" the dangerous condition, the property owner failed to do so.

Just because a dangerous condition exists doesn't necessarily mean the property owner is automatically liable for injuries caused by the pothole. A property owner must have notice and a reasonable amount of time to repair or eliminate the dangerous condition.

For example, if the pothole was quite small and difficult to find, especially in light of the size of the parking lot, and no one had yet reported the pothole, it is arguable the property owner may not be liable.

In the alternative, if the pothole had been reported, and several days or weeks had gone by and the property owner failed to have the pothole repaired, then it is arguable the property owner would be liable for your injuries and resulting damages.

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from an attorney licensed in your state. Find a local attorney to give you a free case review here, or call (888) 647-2490.

Best of luck,

Judge Calisi

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