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Do You Have an Attractive Nuisance on Your Construction Site?

March 2, 2022 No Comments

Attractive nuisances are conditions on a property that entice trespassers to enter. Children are of particular concern when it comes to members of the public entering unsafe places and getting injured. Cases can arise from children trespassing and drowning in public swimming pools, or climbing over fences and getting injured by horses. When it comes to properties under construction, an active or vacant site can also contain attractive nuisances that draw children and pose a threat to their safety. If children trespass onsite due to a lack of safety precautions, the general contractor on the site can be held liable for any injuries they sustain. Attractive Nuisances on Construction Sites Children are in danger at construction sites because they can climb on unstable surfaces, play on heavy equipment, and fall into man-made ditches. Contractors should do everything in their power to prevent young trespassers from entering their property. If you suspect children or any other member of the public have any reason to trespass onto your construction site, treat the problem with the utmost seriousness. Inaction creates a serious risk and liability for your company if trespassers enter and get hurt. Negligence in Attractive Nuisance Cases Negligence can be determined as the cause of attractive nuisance cases when a contractor knew that dangerous conditions existed; but did nothing to prevent an accident. It is less likely that you will be found negligent if you take all necessary measures to prevent injuries on the job site. When is a Contractor Liable for an Attractive Nuisance Injury? The presence of certain conditions is necessary to hold a general contractor responsible for the injuries of a child. The contractor knew that a dangerous condition existed on the premises, and that there was a possibility children could trespass and get hurt. The child was too young to realize that the condition was dangerous. In comparison to the risk the child faced, the removal of the dangerous condition would have been a small burden. The contractor knew, or should have known, that the dangerous condition would pose a significant risk to a child. The contractor failed to remove the dangerous condition or otherwise protect the child. Commercial General Liability (CGL) Policy Contractors are generally covered by the CGL policy in case of bodily injury or property damage. The CGL policy will provide some liability coverage if an attractive nuisance in the construction area injures a child or other member of the public. Maintaining safe conditions on a construction site should be the top priority. While a CGL policy can provide coverage for injuries due to an attractive nuisance, the CGL policy should be viewed as a safety net against claims, not as the main solution to problems of attractive nuisances. Contractors still need to be responsible for job site safety of both employees and the public. This will have the benefit of longer-term, lower insurance costs as well if they manage their insurance risks and exposures. How Can You Make Your Construction Site Safe? In order to protect yourself and your company against nuisance claims, you should install signage around dangerous conditions warning trespassers of their risks. If possible, surround the work site with fencing. At the end of each workday, turn off machines, clear out debris, and remove anything else that poses a threat to safety. Communicate clearly with subcontractors and suppliers on safe work practices. Contractors must also ensure that the property is maintained and secure for all visitors so that they remain safe. Examples include: Keeping walkways free of cracks and gaps to prevent slip and falls. Securing equipment, chemicals, and tools. Installing wireless electronic alarms or security doors and screens. Assuring the safety of employees while they perform work duties. Installing flood lights in areas with poor visibility. Having rescue equipment ready for emergencies. Contact our Construction Law Attorneys for Guidance Get in touch with our construction law attorneys at Morefield Speicher Bachman, LC today if you are being sued in an attractive nuisance claim. Our defense team can provide a number of options for you in court. You should act promptly to put yourself and your construction company in a good position. Contact our team at (913) 839 2808 to set up a time to speak with an attorney.

The Importance of Full Disclosure in Construction Real Estate Transactions

November 1, 2021 No Comments

At Morefield Speicher Bachman, LLP, we have extensive construction practice. Our construction lawyers regularly work in the commercial real estate practice area to reduce the risk of fraudulent behavior and to help resolve the issues if they occur. We regularly work with clients who find that the home or commercial property they purchased has significant problems that the seller did not disclose, or in some cases, even concealed. This happens more frequently than most buyers and sellers realize and it happens for a variety of reasons. We also work with clients who are selling real estate and who need advice to avoid issues with the buyer in the future. When selling real estate, it is extremely important that you disclose information that affects the value of the property. This must be done on the front end during negotiations for the property. Not only is this the best practice and the honorable way to sell real estate, but it can also protect you from facing a lengthy, and costly, lawsuit down the line. We frequently advise clients about disclosure issues. When buying real estate, it is extremely important that you ask questions and request information about any issues that are important to you or that may affect how you can use the property. We regularly advise buyers about their real estate purchases and can help buyers know the right questions to ask before signing on the dotted line. In Missouri and Kansas, failure to disclose material information about a property can be considered fraudulent concealment. A seller who conceals problems with a piece of property may be subject to legal liability for fraudulent concealment and can be held legally liable to the fraud victim for the damages or losses arising from the concealment. Fraudulent concealment differs from actual fraud. Fraudulent concealment occurs when the seller conceals information he or she should reasonably know would affect the sales price of the property. Fraud occurs when the seller knowingly provides false information about the property. Most real estate contracts require the seller to reveal certain types of information about the condition of the property. If the real estate contract requires the seller to reveal information about the condition of the property, but the seller fails to do so, the seller can be liable for fraudulent concealment. If the seller makes false statements about the condition of the property, the seller can be liable for fraud. Our construction lawyers at Morefield Speicher Bachman, LLP, regularly work with contractors and property owners involved with commercial and residential real estate transactions. Attorney Stan Bachman has extensive experience helping contractors, subcontractors, and suppliers resolve disputes. He understands and appreciates construction industry clients because he’s “been there, done that” as a Kansas City commercial general contractor and business owner for 25 years before becoming a lawyer. If disputes arise regarding your construction or business transaction, contact our legal team today. Our firm represents all participants in the industry, from contractors and subcontractors to engineers, architects, and owners. We represent clients at every stage of the construction process. Contact our legal team for help today.

2020 Super Lawyers – Rick Morefield, Stan Bachman, Andrew Speicher

August 1, 2021 No Comments

Morefield Speicher Bachman’s founding members Rick Morefield, Stan Bachman and Andrew Speicher were once again named to Super Lawyers’ Annual List of Top Attorneys in Kansas and Missouri for 2020. Rick and Andrew earned Super Lawyer distinction in the area of personal injury. Stan was honored in the area of construction law. Rick has been named to the SuperLawyers list every year since its inception in 2005. Our law firm is proud to have been recognized again by Super Lawyers and is thankful for this honor. The selection process for the top attorneys begins with nominations by other lawyers and judges. From there, nominated attorneys are evaluated by independent research in 12 key categories followed by panel review. Only 5% of attorneys in Missouri and Kansas receive the Super Lawyers designation. Congratulations Rick, Andrew, and Stan!

What is a Mediation?

October 1, 2020 No Comments

Mediation is an alternative to a jury trial that often leads to the settlement of lawsuits and legal disputes. Mediation can take place before or after a lawsuit it filed. It is now common for judges to order the parties in a lawsuit to mediate a case before it goes to trial. Judges know that many cases can be resolved in this way without the time, expense, and uncertainty of a jury trial. What Happens at a Mediation? Mediation is a less stressful and more collaborative process than a jury trial. Typically, a mediation will take place at the office of one of the attorneys or at the office of the mediator. You and your attorney will spend most of your time in a private conference room. The other party to the dispute and his or her lawyer will spend most of their time in a different conference room. Often the parties will meet together with the mediator at the beginning of the process to discuss the procedures and to give an overview of each party’s view of the case. This is not like a closing argument. Most skilled attorneys present an overview of their case and do not “come out swinging.” Why? Because the purpose of a mediation is to create an opportunity for focused discussion, negotiation and compromise. Compromise is difficult when tempers are high. Sometimes one of the attorneys will give an antagonistic presentation in the mistaken belief that this will somehow help his or her client. We know that the best response is to not react. The goal of mediation is to reach a mutually agreeable settlement. This is not a Facebook argument where one scores points by being witty and insulting. A substantial portion of the mediation involves private caucuses. In plain English, the mediator spends time individually with each side exploring the strengths and weaknesses of their case. The mediator encourages the parties to consider options for settlement. The mediator helps each side better understand the risks and the potential benefits of going to trial. In many, but not all cases, the mediator is able to help the parties reach an agreement to settle the case. In some cases that don’t settle at mediation, the parties will reach a settlement a week or two later. If settlement is still not possible, the parties move forward to trial. One of the benefits of mediation and one of the reasons it can be so effective is that it is largely voluntary. Each side has the right to say “No” to any proposal. Because each party knows that the other party can end the mediation, each party has an incentive to cooperate in the process. Why Would You Settle Instead of Go to Trial? If you have already hired our firm, you probably did so because we have the experience and the ability to succeed in the courtroom. If you hired us because we are good trial lawyers, you may be wondering why you would settle your case rather than go to trial. The first answer is a simple one. When you hire a lawyer who is skilled in the courtroom, you actually have a better chance of obtaining a fair settlement. The other side knows that you can hold their feet to the fire. If the other side offers a fair and appropriate settlement and you can avoid the time, uncertainty, and expense of trial, it often makes sense to settle. There are many other circumstances where settlement makes sense. In some cases, the key facts are in dispute and the outcome at trial is uncertain. You may want to avoid that uncertainty with a settlement. One of the parties may not have sufficient assets to pay a fair settlement and you may decide to settle for what is available. The law may be uncertain in your particular case. Or, there may be a time issue or other personal issue that affects your willingness or ability to wait for trial. Every client’s situation is different. There are many factors that affect whether it makes sense to settle or go to trial. We carefully advise our clients about the risks and rewards of trial and settlement. Ultimately, the choice belongs to you as the client, but we will provide you with legal and factual information, advice, and recommendations so your decision will be a well-reasoned one that works for you. You do not have to make the decision alone.

Who Gets Wrongful Death Damages?

April 22, 2019 No Comments

The death of a loved one is overwhelming. It can be even more so if that death was unexpected and due to the negligence, recklessness or intentional misconduct of another. You may be experiencing not only grief and confusion, but anger. In the midst of this, your legal rights need to be protected. You will likely face unplanned financial losses including medical expenses, burial expenses, lost wages and other expenses. You will also have to deal with the grief and sorrow that comes with the loss of a loved one. You could be entitled to recover damages from the wrongdoer for your losses and your loved one’s losses. The laws governing wrongful death can be complicated, so it is important that you speak to us as soon as possible. Wrongful death lawsuit If the death of your loved one was caused by the negligent, reckless or intentional conduct of another, you could be entitled to receive damages for your loss. The purpose of these damages is to provide relief for the emotional and financial hardship the family has suffered as a result of the victim’s death. State law dictates what damages you can sue for, and in what amounts. Who can sue for damages? Each state has different guidelines as to who has standing, or the right to sue for wrongful death damages. These laws vary from state to state. For a lawsuit filed in the state of Kansas for example, the laws indicate that any heir who has sustained a loss can bring a lawsuit. Heirs would include a surviving spouse, parents, children, and grandchildren for example. In Missouri, the laws are slightly different. Who may bring a wrongful death lawsuit is divided into 3 categories. The first category consists of the victim’s spouse, children, surviving descendants of any deceased children, or the mother or father of the deceased. If there is no one living the first category, then the court will allow claims by individuals in the second category. The second category consists of siblings of the victim and the sibling’s descendants. If there is no one living the first two categories, the court will appoint a plaintiff ad litem. A plaintiff ad litem is appointed by the court on the request of people who have a legal right to share in the proceeds of a wrongful death action. How are damages distributed? Once damages are awarded, state law will determine who receives the money. In Kansas, the estate of the victim may be compensated for the costs of bringing the lawsuit. Then the damages are distributed to the victim’s heirs by the court. The parties often agree to the distribution of a settlement amount, which must be approved by the court. When the parties cannot agree on the distribution of the settlement amount or the verdict amount, the court will make that determination. In Missouri, the court must approve of any settlement and will be responsible for apportioning the damages to the parties in proportion to the loss suffered by each party. Come talk to us Losing a loved one is a life changing experience. As hard as it is, it is important not to lose sight of the fact that you and your family have legal rights that need to be protected. It’s important to start that process as soon as possible. We are here to take that stress off you so that you can heal and move forward with your life. Contact us to discuss your options and learn what can be done to address the loss you have suffered. Call us today at 913-839-2808.

OSHA Compliance – Increases Excavation and Trenching Enforcement

February 22, 2019 No Comments

OSHA Compliance – Excavation and Trenching The Occupational Safety and Health Administration (OSHA) has announced that it is stepping up their safety enforcement and education with an excavation and trenching National Emphasis Plan. This OSHA compliance activity will last for a period of at least three months but could go on for an indefinite period of time. The Agency stated, “OSHA will concentrate the full effect of their enforcement and compliance assistance resources to help ensure employers are addressing these serious hazards.” This new plan became effective on October 1, 2018. The reason for this program is because there has been a marked increase in trenching fatalities. In 2016 alone, the number of these accidents was nearly two times the average for the past five years combined. OSHA reported that “because of the continuing incidence of trench/excavation collapses and accompanying loss of life, the agency has determined that these worksites continue to warrant an increased enforcement presence. OSHA has long maintained that employees exposed to potential cave-ins must be protected before the excavation face is in imminent danger of collapse, because OSHA believes that there is a potential for a collapse in virtually all excavations.” If you are uncertain as to whether your business in is compliance with these safety regulations, it is important to take advantage of their three-month grace period. During the grace period, OSHA regional and area offices will conduct outreach and assist with safety compliance. The outreach programs offered will include seminars for employers, labor groups and trade associations, as well as a free onsite consultation programs to help identify potential hazards. After this time, OSHA compliance officers will conduct inspections, and business owners and contractors could be subject to steep fines. It’s no secret that trenching and excavation are some of the most hazardous construction operations there are. Countless dangers are involved with these projects, which cause hundreds of injuries and fatalities every year. Cave-ins are the most dangerous, and result in the most fatalities. Other dangers can include incidents involving problems with equipment, falls, and hazardous conditions. It is important to ensure that your business is in compliance and your employees are safe. OSHA recommends the following: Employ Protective Systems Slope or bench trench walls Shore trench wall to prevent soil movement Shield trench walls to prevent cave-ins Prevent Collapses Any trench 5 ft. or deeper requires a protective system Any trench 20 ft or deeper requires a protective system created by a professional engineer Don’t Enter a Trench Unless Cave-in protections are present There is a safe entry and exit It has been properly inspected There are no materials near the ledge There are no atmospheric hazards or free-standing water This is a good time for construction businesses, contractors and any company with a building project planned to review their policies and ensure they are following trenching and excavation safety rules. This can take a great deal of time and energy, and includes pre-planning, and ensuring that employees are following proper safety procedures and daily inspections. If you have any questions or concerns about this new development, please contact us for guidance on this and any other construction law related issue.