LEGAL TEAM SPEAKS
Ronald H. Jarashow, Esq., Robert R. Smith, Esq., and Gilda O. Karpouzian, Esq., are practicing lawyers in Maryland with over 30 years of experience. Their answers below are based on assumptions that Maryland law applies. Mr. Jarashow and Mr. Smith can be contacted at (410) 268-5600 or [email protected] and Ms. Karpouzian can be contacted at (410) 280-8864.
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Dear Legal Team:
During the ice storm in March I delivered soup to my neighbor. On the way out of her house I slipped and turned my ankle very badly. There were medical bills and I had to miss some of my part-time work. This unexpected expense has set me back and I’m having trouble keeping up with all the bills. I don’t want to sue this neighbor, but she refuses to help or even report it to her insurance company. What do you suggest I do to try to recoup some of my losses? – Still Limping.
Dear Still Limping:
Falling on your neighbor’s property can present a complicated legal situation. Every state has legal rules about a property owner’s duties to keep real property safe for visitors. Even if the property owner violates a duty, in some states, if you were partly to blame, you can be totally or partially barred from recovery. If your neighbor has liability insurance as is required by many mortgage lenders, then that homeowner’s insurance may pay for medical bills and/or lost wages for someone injured on the property no matter who is at fault for causing the injury. Although you do not want to sue your neighbor, there is no other way that you can force your neighbor to reveal the name of her insurance company. Once you find out the name of the insurance company, you can report the injury and circumstances to the company directly. An attorney can assist you in evaluating the claim and at least getting the name of the insurance company in order to find out if it has a medical pay coverage and lost wage payment provision.
Recovering for your pain and suffering, any permanent injury or permanent wage loss takes you into the legal world often referred to as “premises liability” or negligence. In some states, there is “strict liability” where the property owner must keep the premises safe for a visitor. In other states, like Maryland, you must prove that the landowner breached some duty to you. Slipping and falling on ice often raises the question of whether the injured person was aware that the conditions were dangerous, but walked on the icy area anyway or was not as careful in walking in an icy area while knowing of the conditions, which may be similar to that ice storm. In Maryland, the first question is whether your neighbor was “negligent” in not cleaning the ice from the walk or steps. Even if your neighbor was negligent, if you could see the ice or knew or should have known that the ice was likely to be there, then you may have “assumed the risk” or have been “contributorily negligent” for not being as careful as you should in walking on the icy area. In Maryland, if you either assumed the risk or were contributorily negligent, then you would be completely prevented or barred from getting any recovery. In your situation, you indicated that you entered the house presumably going over the icy area and knew of the existence of the icy conditions when you left. So these defenses would be of concern. There are exceptions. We have been successful in obtaining recovery in an employment situation where an employee had no choice but to walk over an icy area in order to work.
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Dear Legal Team:
My neighbor says that my fence is on his property. I can’t afford and don’t want to hire someone to prove our boundary and he won’t show me his plot plan to prove what he’s saying. I’m not removing the fence and in fact plan to ignore him. Is there anything that he can do to my fence? He said he’ll take it down if I won’t. -No Longer Neighborly.
Dear No Longer Neighborly:
The old saying “good fences make good neighbors” does not seem to apply to your situation. Evidently you and your neighbor have a boundary dispute. It is well established that, in the absence of a valid statute or contract, a property owner can fence his land. Of course, an owner cannot place a fence on his neighbor’s property. To do so is trespassing. A lawsuit for trespass could be filed seeking damages, to tear down the fence, and for other damages. Correspondingly, your neighbor should not use “self-help” by tearing down your fence, especially if it is rightfully on your property. If he does, you can sue him for wrongful destruction or removal of your fence, and seek damages, an order saying you have a right to the fence, or for other relief. Unfortunately, sometimes in neighbor disputes, one party takes action against the other without paying attention to what the law says. You may find that your fence gets damaged or removed. Your neighbor may deny or admit responsibility. Ultimately, you might be forced into court action. Before that happens, it would make sense for you and your neighbor to cooperate in getting a proper survey done and splitting the cost. Even if your neighbor does not cooperate, you probably should get a survey performed to show the location of the fence as correctly placed on the property line. This would be useful to you if there was any litigation in the future. Maybe your survey will convince your neighbor that your fence is in the correct place. The key is determining the boundary line between the properties and determining whether the fence really rightfully sits on your property. This may produce a dialogue with your neighbor toward seeking a mutual resolution of the matter.
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Dear Legal Team:
My mother keeps changing her will, or so she says. One day I’m the sole inheritant and the next it’s my no -account brother, then to the Prevention of Cruelty to Nonexistent pets. Should the unexpected happen and she departs this world, do I have any legal rights to her estate if she does end up giving it to someone other than me? I’ve become pretty much the sole caretaker and have, in her manipulative stages, been the sole inheritant.- No Inheritance
Dear No Inheritance:
The rules about whether a will is valid and enforceable vary from state to state. In most states, however, as long as your mother is legally competent at the time of making of her last will and testament, she can change her will and leave her money to the people or the charity of her choice. The last will and testament usually will have language acknowledging that it is the intent of the maker of the will to disinherit one or more of her children or relatives or leave all or part of the estate to a charity and/or individuals that are unrelated to the decedent. In some states, there are requirements for specific language that must be included in the will if a natural child is going to be disinherited.
There are various ways that a will can be attacked or set aside. For example, if you believe that your mother was unduly influenced or that fraud has been committed to make her change the will, then you may be able to file a legal action to “contest” her will. The process for will contests is different in each state. Many states recognize the principle, however, that if someone is in a “confidential relationship” with your mother and the will is changed to benefit that person, it might raise legal questions about undue influence that could set aside the will. Or, there may be proof that some person improperly exercised influence over your mother to change her will. There are other grounds to attempt to have a last will and testament be declared invalid, such as if the will is not witnessed by two individuals competent at the time of witnessing the execution of the will. Contesting a will occurs by filing legal proceedings with the court, which can be costly.
You also raise another issue with respect to being your mother’s caretaker. If you are to be reimbursed for your services to her, you may have a “claim” against your mother’s estate. The legal rules about whether you can get paid for having been your mother’s caretaker may be different in every state. Some courts will recognize the right to get paid for the value of your services. Sometimes, there is an agreement that sets out what was supposed to be paid. Filing a claim against an estate or bringing a lawsuit against your mother’s estate will be governed by the laws and procedures that apply in that state.
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We are providing information about the law. Legal information, however, is not the same as legal advice about your specific circumstances. We try to be accurate and useful. We strongly recommend that you consult a lawyer to find out what is appropriate in your particular situation. We are not giving specific legal advice to you. These answers do not create an attorney-client relationship.
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