Imagine you are the foreperson of a jury. The case you must decide involves a man suing his sister for injuries. What’s your first reaction? Would you be skeptical? Perhaps you might assume the siblings were colluding in order to pursue an insurance claim. That would surely demand a verdict in favor of the insurer.
In the case I’m handling, the story is far different. My client was injured last Thanksgiving when he fell while leaving his sister’s home after dinner. He had back surgery two months later. Let’s start this story at the beginning.
My client entered his sister’s home around 3 pm while it was still light out. They had a typical Thanksgiving dinner together. My client had half a glass of wine with dinner. He did not venture outside during his entire visit. When the time came to leave, he walked through the front door into relative darkness. His sister had failed to replace a burnt out light bulb over the front porch.
The porch extends out approximately 3 feet and then there is a 3 inch drop to the sidewalk. Unfortunately, my client forgot about this drop off, and because it was so dark, he didn’t see it. As a result, he fell.
What makes this case interesting is that brother and sister are and were not close. Sister is not happy about being sued. She is not going to help her brother’s case in any way, as was made clear to me by her attorney. This attorney was provided to her free of charge by her homeowners insurance company. I expect a battle at least as tough as the typical stranger v. stranger litigation scenario. This was my client’s first visit to his sister’s home in over a year. And so he was not overly familiar with the layout of her home. Admittedly he had walked up the step into the home several hours before. Should he therefore have avoided this “open and obvious” hazard? The jury may come to just this conclusion. Is that what you, the foreperson of the jury would conclude?
The law permits a certain amount of “momentary forgetfulness”. A person is not required to be hyper-attentive to everything around him. The law recognizes that sometimes we lose focus because of distractions. Does it depend on how dark it was on the porch?
Pennsylvania law states:
“The law recognizes the person of ordinary reason and prudence sometimes forgets, is sometimes inattentive, and is not perfect infallible. Therefore, forgetfulness or inattention may be excused when the circumstances are such that a jury could reasonably conclude that a person of ordinary prudence, so situated, might have forgotten.” So what you think of this case? Does brother suing sister rub you the wrong way? Do you think I have a chance to win? What strategies do you think I should employ to neutralize the brother v. sister element?
