Yes. In certain circumstances, a lawsuit can be brought for a landslide if it can be shown that a human contributed to the landslide’s effect. In most cases, such a lawsuit would involve the theories of negligence or fraud.
Possible human contributions to a landslide include:
- A neighbor removes lateral support from the surrounding property
- A real estate agent fails to disclose that landslides are common in the area
- A seller lies about the possibility of landslides or that the house has been affected by a landslide in the past
What Legal Theories Cover Landslide Lawsuits?
There are two theories that cover landslide lawsuits: negligence and fraud.
Negligence is the legal theory that allows injured persons to recover for the carelessness or recklessness of others. A person is negligent if they were careless given the circumstances of the situation.There are four elements in a negligence case:
- Duty The first element to prove is that there was a duty to act with “reasonable care.” What is “reasonable” depends on the activity and the relationship between the plaintiff and the defendant. For example, car drivers have a duty of care toward other cars on the road – they must act so as to avoid harm to other drivers – but they do not have a duty of care to make sure that when they are parked their car does not annoy someone by being parked in a legal but inconvenient space.
- Breach The person or company did not act reasonably, given the circumstances. If a defendant undermined the stability of the land around their property because they did not have a safety analysis done before construction, that would be a breach of the duty of care toward their neighbors.
- Causation The defendant’s behavior must be what caused the injury to the plaintiff. In some cases both parties may have had part of the fault of causing the accident. That’s allowed, but any award of money to the plaintiff will be reduced by the percentage of the plaintiff’s fault.
- Damages Something or someone must have been damaged, or it cost them money they would not otherwise have had to spend. That could include the cost of repairing a neighboring house, damage to other property, medical bills, lost days of work, or more. In some cases, a recovery award can also cover the victim’s pain and suffering. This is most common when the defendant was reckless, not just careless.
Negligence is not the only legal theory available to a person who wants to bring a lawsuit arising from a landslide. The other available theory is fraud.
Fraud is wrongful deception intended to result in financial or personal gain. There are five elements to prove in alleging a case of fraud:
- A misrepresentation about a material fact. Something important must have been lied about, or the fraud perpetrator must have failed to tell the victim about a material fact. “Material” means that the statement substantially affected the victim’s actions and decisions.
- The defendant knew it was untrue. The person who made the statement must have known or believed that it was incorrect or untrue.
Intent to deceive. The statement must have been made with the intent to deceive the victim.
- Reasonable reliance. The victim’s reliance on the statement must have been reasonable in the eyes of the judge or jury. Reliance on outrageous or clearly impossible statements probably will not add up to “reasonable” reliance. However, persons known to be illiterate, incompetent, or otherwise mentally diminished may still have a claim for fraud even if the statement wasn’t reasonable to rely on, if the liar knew they had a special condition and took advantage of it.
- Actual loss. The victim suffered some actual loss as a direct result of their dependence on the false statement. This could be property damage or personal injury or both.
The most common case of fraud for a landslide injury is when someone buys a house and the seller or the seller’s real estate agent lies about, or fails to mention, the fact that the property is located in an area where landslides are a serious danger.
Fraud does not only include lies. Sometimes the failure to bring something up constitutes fraud. When someone is selling a house, they do not have to reveal all the house’s defects. The buyer will have to do their own inspection and checking to see if the kitchen subfloor will need to be replaced because water seeped underneath the linoleum. However, there are certain types of house-related problems that must be truthfully disclosed.
What specific problems need to be brought up differs from state to state, because different areas of the country have different dangers and risks. For example, in the Midwest, where it is common for water to seep into a basement, the seller must disclose if the basement has ever been flooded or if they have ever had to install a pump to remove basement water. It is possible for a landslide to happen in the Midwest, but it is so rare that local law doesn’t cover that possibility.
In areas where landslides are common, the law will be clear about whether that possibility must be revealed. That is one reason it is important to be represented by a local lawyer if you suffer landslide injuries.
What Can Someone Do Who Was Hurt in a Landslide Accident or Injury?
In many cases, a landslide accident may require legal action to remedy. Such lawsuits may result in a monetary damages award to compensate the victim for their injuries. The award will likely include medical costs, hospital expenses, property damage, and associated costs.
If the defendant’s behavior was especially egregious, remedies may include an order to pay “punitive damages,” damages meant to penalize the defendant. Particularly when collected from a corporation (e.g., a real estate agent’s business), these damages can be quite high, often many times the cost of the out-of-pocket damages.
Are There Any Defenses to a Landslide Lawsuit?
The defense to a lawsuit for landslide injuries that something other than the defendant was the cause of the landslide. Nature, such as rain or erosion, is a common defense.
Reverse causation may also be a defense. Suppose that a landslide victim claims that a government agency caused the landslide by failing to build a proper retaining wall. The government could argue that the wall delayed the landslide rather than caused the landslide.
If the landslide can’t be passed off as a random event, the next line of defense is contributory negligence. This is the claim that the owner took the risk that a landslide might occur when he or she bought the property. The owner could have foreseen that a landslide would occur because landslides commonly occur in the area. As mentioned, this defense depends on what state you’re in because landslides are more common in some states than others.
Finally, contracts may serve as deterrence to lawsuits. Property deeds in areas where landslides are common often contain clauses disclosing the presence of landslides and shielding the government agency , the seller, and the real estate agent from liability.
What If My Homeowner’s Insurance Refuses to Cover the Damage?
In states where landslides are common, insurance companies will find a way to excuse themselves from covering landslides. The contract provision can be explicit: “This agreement does not cover damage caused by earth movement.” Likewise, insurance companies can avoid covering landslides by omission: “This agreement covers natural disasters, which is defined as fire, flooding, or landslide.”
In most cases, the best way to obtain coverage for landslides is to find an insurance company willing to insure landslides. However, there are a few cases where contract interpretation may be important. If the agreement promises to cover flooding, the homeowner might be able to recover for any flooding damage even if it was caused by a landslide.
Do I Need a Lawyer?
Suing for damage from a landslide can be very difficult. Since most landslides are natural occurrences, proving that a human contributed to the damage caused by a landslide can be hard.
An experienced personal injury lawyer can help you evaluate your chances of success, and can represent your interests in negotiations with the other party and with all court matters.
