Accident at an unsecured parking lot?

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Accident at an unsecured parking lot?

Recently my car was involved in an accident. I was not in the car – I was parked at the time in a public lot outside of a local restaurant. This portion of the parking lot is on 2 levels – an upper and a lower level with nothing but a 4 foot tall retaining wall between them. There was no barrier between the different levels. My car, specifically, was parked on the lower level, right next to the retaining wall. Another car was trying to turn around in the upper lot. He backed up too far, tumbled over the retaining wall, flipped over and landed upside down on top of my car. For the record, the other driver 90 years old is still in the hospital, 5 days later. The insurance claims are still being processed for both of us. The insurance company decided to total my car after receiving the initial estimate from the collision repair shop. They are still in the process of determining the settlement amount they’re willing to offer me – which may or may not be enough to pay off the balance of the loan that I still owe on the

car. Is there anything in particular I need to be aware of as I wait for the settlement offer from the insurance company? Is there any liability for the property owner, for not securing that portion of the parking lot with a barrier between the levels?

Asked on March 10, 2017 under Accident Law, Nebraska

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

1) While waiting for the settlement offer, be wary of what you say to others--as the saying goes, anything you say can be used against you.
2) When you get the settlement, see if you are giving up the right to sue the at-falt driver for any amounts not paid by the settlement (e.g. a deductible, or other costs you have borne but which were not covered, like renting a car); if you care about those amounts, either negotiate payment for them or make sure you can sue later, before you sign the settlement and cash the check.
3) The parking lot would only be potentially liable IF there is reason to think that it was unreasonably careless to not have a barrier between the levels. To show that, you would need to hire and get a report from (and possibly testimony from, too) an expert, such as an architech or civil engineer who designs/builds parking gargages/decks. Only armed with a credible opinion from an accredited expert, to the effect that the design was negligent, might you have a case. Since you would have to foot the bill for the expert yourself (you can't recover it in the lawsuit; this would be your cost), it may not be worthwhile doing this: you could spend the money and lose; or if you were already paid most of your potential claim by insurance, you could spend more on this than you'd get back by suing for any amounts not paid by insurance.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

1) While waiting for the settlement offer, be wary of what you say to others--as the saying goes, anything you say can be used against you.
2) When you get the settlement, see if you are giving up the right to sue the at-falt driver for any amounts not paid by the settlement (e.g. a deductible, or other costs you have borne but which were not covered, like renting a car); if you care about those amounts, either negotiate payment for them or make sure you can sue later, before you sign the settlement and cash the check.
3) The parking lot would only be potentially liable IF there is reason to think that it was unreasonably careless to not have a barrier between the levels. To show that, you would need to hire and get a report from (and possibly testimony from, too) an expert, such as an architech or civil engineer who designs/builds parking gargages/decks. Only armed with a credible opinion from an accredited expert, to the effect that the design was negligent, might you have a case. Since you would have to foot the bill for the expert yourself (you can't recover it in the lawsuit; this would be your cost), it may not be worthwhile doing this: you could spend the money and lose; or if you were already paid most of your potential claim by insurance, you could spend more on this than you'd get back by suing for any amounts not paid by insurance.


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