July 2016 Volume X No. 3 Taking Care of Business
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Summer Spruce Ups – Not Just Home Maintenance But Liability Protection


Sean Kenyon

As you fine-tune your home maintenance list, eliminate trip hazards. Addressing such hazards will improve your home’s aesthetic value and protect you from liability. Under the law, we owe responsibilities to protect others from danger. In the context of premises liability, the law insists that a person, who controls property, protect guests from dangerous conditions on that property, including trip hazards. If a homeowner fails to exercise the required care to protect guests, he may be liable for any resultant injury.

During winter, most recognize the need to clear snow from sidewalks to prevent someone from slipping and falling. But as we enjoy longer days, other potential liability issues arise. This article offers tips to reduce homeowner liability during warmer months and steps to take if someone is injured at your home.

First, assess your home’s lighting. Poor lighting may lead visitors to trip and fall. Especially outdoors, where warm evenings encourage guests to stay past sunset, insufficient lighting may cause a guest not to see a trip hazard. Thus, assure a well-lit yard. And before guests arrive, pick up toys, hang rakes, and roll the garden hose.

Second, keep stairs and flooring problem free. Liability may arise if a friend visits, falls on a broken step, and fractures an ankle. Accordingly, assure that outdoor steps are not broken or cracked. In addition, fix or replace loose boards on the deck. Also, assure that outdoor rugs are well anchored and not curling at the edges. Indoors, too, keep stairs in good repair, do not allow carpets to buckle, and affix backing to rugs to avoid fall hazards.

Third, if you have a pool, install non-slip surfaces around it and light the area well.

If a visitor to your home is injured, arrange for medical care immediately. Once your guest’s health and comfort are provided for, consider your legal position. If you anticipate a claim for an injury, advise your homeowner’s insurance carrier and seek legal advice. You may want to photograph the area where the injury occurred. If a security camera recorded an injury incident, preserve that photographic evidence. If you destroy such evidence, the law allows your injured guest an evidentiary presumption that whatever was depicted would have been more favorable to his case than yours.

Ultimately, injuries sustained by guests present case-by-case questions. As one court wrote, “falling and injuring one’s self proves nothing. Such happenings are common place . . . .” Wright Corp. v. Quack, 526 N.E.2d 216, 218 (Ind. Ct. App. 1988). Both the homeowner and guest must exercise reasonable care to avoid injury. See Hunsberger v. Wyman, 216 N.E.2d 345, 348 (Ind. 1965). Thus, assure that your defenses are identified and preserved with an early investigation by an attorney.

Finally, confine discussions about the incident to your insurance company representative and your attorney. Do not post information about it to Facebook or Twitter for all to read and possibly question you about later on the witness stand.

If you have questions regarding the contents of this article, or other similar issues, please contact your HWE relationship attorney or visit us at http://www.hwelaw.com.

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Language Discrimination


Jim Jorgensen

Title VII of the Civil Rights Act of 1964 is a federal law that protects individuals from discrimination based upon national origin. Some courts and government agencies have said that discrimination based on language is a form of national origin discrimination because primary language is closely related to the place a person comes from.

For example, generally, an English language fluency requirement is permissible only if required for the effective performance of the position for which it is imposed. Because the degree of fluency that may be lawfully required varies from one position to the next, employers should avoid fluency requirements that apply uniformly to a broad range of dissimilar positions.

As with a foreign accent, an individual’s lack of proficiency in English may interfere with job performance in some circumstances but not in others. For example, an individual who is sufficiently proficient in spoken English to qualify as a cashier at a fast food restaurant may lack the written language skills to perform a managerial position at the same restaurant that requires the completion of copious paperwork in English. As illustrated below, the employer should not require a greater degree of fluency than is necessary for the relevant position.

EXAMPLE:

Jorge, a Dominican national, applies for a sales position with XYZ Appliances, a small retailer of home appliances in a non-bilingual, English-speaking community. Jorge has very limited skill with spoken English. XYZ notifies him that he is not qualified for a sales position because his ability to effectively assist customers is limited. However, XYZ offers to consider him for a position in the stock room. Under these circumstances, XYZ’s decision to exclude Jorge from the sales position does not violate Title VII.

Title VII permits employers to adopt English-only rules under certain circumstances. As with any other workplace policy, an English-only rule must be adopted for nondiscriminatory reasons. An English-only rule would be unlawful if it were adopted with the intent to discriminate on the basis of national origin. Likewise, a policy that prohibits some but not all of the foreign languages spoken in a workplace would be unlawful.

Even when an English-only rule has been adopted for nondiscriminatory reasons, the employer’s use of the rule should relate to specific circumstances in its workplace. An English-only rule is justified by “business necessity” if it is needed for an employer to operate safely or efficiently. The following are some situations in which business necessity would justify an English-only rule:
  • For communications with customers, coworkers, or supervisors who only speak English.
  • In emergencies or other situations in which workers must speak a common language to promote safety.
  • To enable a supervisor, who only speaks English, to monitor the performance of an employee whose job duties require communication with coworkers or customers.

It is common for individuals whose primary language is not English to inadvertently change from speaking English to speaking their primary language. Therefore, if an employer believes it has a business necessity for a speak-English-only rule at certain times, the employer should inform its employees of the general circumstances when speaking only in English is required and of the consequences of violating the rule. If an employer fails to effectively notify its employees of the rule and makes an adverse employment decision against an individual based on a violation of the rule, the EEOC will consider the employer’s application of the rule as evidence of discrimination on the basis of national origin.

If you have questions regarding Homeowner’s Association Policies, or other similar issues, please contact your HWE relationship attorney or visit us at http://www.hwelaw.com.

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DISCLAIMER: This publication is not intended to be legal advice but is presented for informational and educational purposes only. The facts and circumstances of a specific legal issue are unique and you should seek legal advice for your specific questions or concerns. No attorney-client relationship is created.