Photographs Are Worth a Thousand Words: Document a Property Condition Before It Is Materially Changed

Nicholas J. Lawrence, Esquire
December 9th, 2013
By: Nicholas J. Lawrence, Esquire

Business owners performing significant changes to their property should consider photographing the existing condition before making any changes. A recent case in the City of Virginia Beach illustrates the potential problem when improvements are made without documenting the existing conditions. In 2006, an elderly patron of a parking garage tripped and fell on the 4″ curb beside an elevator loading platform. About six months later, with no reports of any prior problems, the curb was painted yellow as part of an effort to improve overall visibility inside the garage. Eighteen months later, the property owner learned of the fall for the first time when a lawsuit was filed.

The claimant did not assert that the curb was deteriorated, improperly installed, or not up to code. Instead, she simply argued that the 4″ grey concrete curb, inside a “dimly lit” garage, was not reasonably visible because it blended in with the surrounding grey concrete parking surfaces. Photographs taken after suit were of limited use, because they would have allowed the plaintiff to argue that the decision to paint the curb yellow proved that the unpainted condition was unsafe. With no usable photographs, the jury was left to choose between competing recollections of what the curb looked like at the time of the accident.

After a two day jury trial, this case ultimately ended with a defense verdict. However, the lack of photographs allowed the plaintiff to create a factual dispute that would not have existed if the area had been photographed prior to the painting. While the parking garage business did the right thing in painting the curbs, and did so for the right reasons, the failure to document the existing condition left them vulnerable to a long and costly lawsuit. Business owners should consider documenting the existing conditions on their property prior to performing improvements in order to avoid finding themselves in the same unfortunate position. This is especially so when claims may materialize after the condition changes. Having evidence of the condition before it was changed may help stave off frivilous and costly lawsuits.

Disclaimer

This blog and the information provided has been prepared by Bancroft, McGavin, Horvath & Judkins, P.C. (“BMHJ”) for information purposes only and is not intended nor to be construed as legal advice. This blog may contain the opinions of the members and associates of this firm on various legal issues and is not legal advice. Read More