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Preferred Insight

Look Who’s Not Looking

by Tara L. Cummins, J.D. and Steven Gross

Beware the Texter

Public outreach campaigns remind us daily not to text and drive.  In many states distracted driving has morphed from a social taboo to a punishable crime. Yet, not every instance of pedestrian injury is caused by a texting driver.  Increasingly, traffic accidents are a result not of distracted drivers but distracted walkers.

A new study from the Harborview Injury Prevention & Research Center at the University of Washington finds that one in three pedestrians perform a distracting activity while crossing the street.  Pedestrians are free to roam with noses bent to cell phones, e-readers, digital games or other hand-held devices without consequence, even though such distraction will likely to give rise to injury.   Indeed, a recent study by the Consumer Product Safety Commission estimates that nationally 1,152 people were treated in emergency rooms for injuries incurred when walking and using a hand-held device.

This number will undoubtedly rise as more and more Americans use hand held devices for increasing tasks.   Recent Pew Research studies have discovered that Americans aged 18 and over are using their phones for a multitude of tasks, all of which divert attention and many of which are undertaken “on the go.”   Whether it is texting, email, surfing the web or downloading apps, our citizenry’s heads are not facing forward, but down.

What’s A Prudent Property Owner To Do?

In April of last year, the city of Philadelphia taped off “e-lanes” on sidewalks surrounding City Hall in an April Fool’s Day prank aimed to raise awareness of the increasing danger of distracted walking.  Some cities are combating distracted pedestrians by updating jaywalking laws.  But these measures can hardly stem either the tide of increasingly unfocused travelers or keep them off commercial property.

There is little that property owners can do to prevent distracted walking.   Signs, banners or similar visuals will obviously be ineffective.  In truth, the most sensible course of action for property owners and managers lies in two means of protection: well-constructed insurance coverage and diligent risk management.

Well-Constructed Insurance

So-called “slip and fall” claims arising from distracted pedestrians can be addressed through several means:

Premises Liability:

Premises liability is part of a standard general liability coverage form.  The coverage is designed to protect a property owner from claims arising from injury that occurs on the property as a result of negligent upkeep or the breach of similar duties of care.

Medical Payment Coverage:

Medical Payment coverage is a no fault coverage within premises liability that allows the payment of medical bills without regard to fault for the incident that caused the claimant to incur medical treatment.

Consider, for example, a claim scenario where the insured’s sidewalk has neither defects nor maintenance issues.  A visitor falls and requires medical treatment.  The claim can be successfully resolved by payment of medical bills without a legal finding of liability by the property owner.

Umbrella Liability Coverage:

There is always a risk that the limits of a general liability policy will be insufficient to cover a claim, either because a claim is simply too big or because a separate incident has already depleted available insurance.

Umbrella liability insurance helps by adding additional layers of insurance at a discounted price.  This coverage sits excess of general liability coverage and is designed for losses that arise from catastrophic injuries or property claims.  Understanding how an umbrella policy wraps around primary general liability insurance is crucial to help insulate against uncovered loss.

Ensuring that these coverages are in good order is a critical measure of financial protection.  Property owners should discuss them with their insurance advisor.

Leases:

Landlords should consider supplementing an additional layer of protection in their lease.  Indemnification and Defense Cost clauses within a tenant’s lease will transfer liability to a tenant

Prudent Loss Control

Typical slip and fall hazards include cracked sidewalks, torn or bumpy carpet, uneven steps, puddles, and debris.   While many of these hazards may be obvious to the naked eye, they are less obvious to eyes focused on texts, e-mail or the web in the palm of a pedestrian’s hand.   Property owners and managers should use maintenance checklists regularly and be particularly diligent when it comes to :

Flooring
Ensure that floors are smooth but not slippery, clear of spills and debris.  Carpeting should be visually plain, without distracting designs.   Any changes in elevations, including ramps, should have appropriate slip resistance ratings.

Stairs
Keep stairs well lit, with proper handrails.  Make sure that steps are regular without uneven changes in height.

Lighting
Use complete, bright lighting on stairs, in hallways and parking lots.

Parking Lots
Be sure that pedestrian routes are well marked and safe.  If you cannot avoid having a speed bump in a pedestrian walkway, then properly designate and highlight the speed bump with bright, slip-resistant paint.

Sidewalks
Keep sidewalk surfaces in good repair to avoid uneven or broken concrete and slabs uplifted by tree roots.  Clear snow or ice immediately and be sure to remove overhanging trees or foliage.  Make sure pathways are well lit.

A Billion Reasons To Be Vigilant

Forrester Research estimates that by 2016 one billion people will own a smart phone.  The increasing utility of smart phones only serves to further our dependency – and thus focus – upon them.  Property owners must resolve themselves to the distracted walking menace and anticipate a growing number of visitors, invitees and even trespassers who are failing to look where they are going.  Paying careful attention to hazards that others may fail to see is the best prevention available to property owners and managers.

 

About the Authors
Steven Gross is Senior Executive Vice President and Chief Program Officer of Preferred Concepts and directs the firm’s underwriting processes and best practices.   Contact him at 646.218.3276 or sgross@preferedconcepts.com.

Tara L. Cummins, J.D. is a Senior Vice President of Preferred Concepts and specializes in knowledge management, communications and client service.    Contact her at 646.218.3286 or  tcummins@preferredconcepts.com.

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