Thousands of premises liability claims are filed each year in the United States. Many are successful, and result in substantial slip and fall settlements. But, there are just as many that fail. Those victims are left frustrated and confused, sometimes with barely enough money to cover their expenses.
Too often, the first thought of someone injured by a slip and fall is, “How much are my injuries worth?” when it should be, “Do I have a valid case?”
Before deciding whether enough evidence exists to support a claim for injuries, you must understand the property owner’s responsibilities and the legal requirements needed to establish your case. They aren’t difficult. All it takes is some logical thinking.
Legal Issues in Premises Liability Claims
Duty of Care
Property owners have a duty to protect those invited onto their property. A duty of care is the responsibility a property owner has to keep her property free from dangerous conditions, which could injure invitees.
- An invitee or licensee is someone with a legal right to be on someone else’s property. The invitation can be made formally, informally, and can even be implied. In public places, like supermarkets, malls, restaurants, etc., people are there by implied invitation. They don’t need a formal invite.
- A trespasser is not invited onto property. In almost all cases, a trespasser won’t be able to file a claim for injuries suffered on someone else’s property.
- A property owner must do everything within reason to protect people legally on her property from injury. She must fix any hazardous conditions as soon as she’s aware of them.
- A property owner’s actions must be reasonable.
Reasonable actions are those accepted as normal and appropriate by other property owners in similar circumstances.
- The danger must be foreseeable.
Foreseeable means the property owner must have known, or should have known, the dangerous condition existed, and that it might lead to injuries.
These two points are related. Reasonable action includes a measure of foreseeability, meaning, if a property owner can foresee that something on her property might cause injury, she must take reasonable steps to fix the danger and protect her visitors.
Contributory negligence is when an injured person did something that contributed to their own injuries. The higher the degree of contributory negligence, the less liability will be assigned to the property owner. This can lessen, or even totally void a slip and fall settlement.
There’s no single rule you can reference to determine if a danger was foreseeable, if the property owner’s actions were reasonable under the circumstances, and if the victim contributed to their own injuries. The facts must be considered on a case-by-case basis.
Let’s review some examples to get a feel for the issues involved…
Example: Pothole in a Parking Lot
Immediately after learning of a pothole in his restaurant’s parking lot, the owner, James, went outside and cordoned off the area with pylons and wooden barriers. He strung yellow caution tape all around the edge of the pothole.
James called the asphalt company to come out as quickly as possible to repair the pothole. They told him they would be there later that evening, but never showed. Sometime overnight, a group of teenagers came by and removed the pylons, barriers, and caution tape, leaving the pothole fully exposed.
Tim, the newspaper delivery man, came early the next morning. He was late delivering his papers that day, so he was running as fast as he could to each customer on his route. As Tim ran up to the restaurant door, he tripped and fell in the pothole. He broke his leg and herniated a disk in his back.
Tim hired an attorney and filed a claim against James, alleging he breached his duty to protect Tim by not marking or repairing the pothole on his restaurant’s property. James’ attorneys responded by denying liability, stating James had done everything reasonably possible to address the problem.
Questions of Liability
- Was the possibility of Tim getting injured in the pothole foreseeable?
- Were James’ actions to protect Tim reasonable under the circumstances?
- Did Tim contribute to his own injuries by running, and possibly being careless?
- If he hadn’t been running, would Tim have been able to avoid the pothole?
In this case, there is a very strong argument in favor of the restaurant owner. James did his duty and took reasonable action to protect the delivery man, Tim, from danger. There wasn’t much more James, or any other restaurant owner under similar circumstances, could have done to protect Tim from injury.
It wasn’t foreseeable that thieves would come in the night to steal the protective materials set out around the pothole. Nor was it foreseeable the asphalt company wouldn’t come that evening as agreed.
The issue of Tim’s running contributing to his injuries probably would not be a consideration in this case, as so much other evidence weighs heavily in favor of the restaurant owner.
Example: Water on Supermarket Floor
On her way home from work one evening, Beth stopped by a local grocery store to pick up some fresh vegetables for dinner. The store had an automated misting machine in the produce section, which sprayed fresh water on the vegetables to keep them fresh. An employee came by once every three hours to mop up any excess mist.
Several days earlier, the misting machine began to leak. The leak worsened each day, leaving more and more water pooling on the floor. Roger, the supermarket owner, knew about the problem, and had called the repair company to come out. Three days later, they still hadn’t come to fix the machine. Employees continued to mop on the three-hour schedule.
The last mopping had been done about an hour before Beth walked down the produce aisle. Suddenly, her legs went out from under her. She slipped and fell on the water, suffering a broken wrist and a concussion. Beth pursued a slip and fall settlement to compensate for her injuries.
Questions of Liability
- Was the possibility of Beth slipping and getting injured foreseeable?
- Were Roger’s actions to address the dangerous condition reasonable?
- Did Beth contribute to her injuries in any way?
In this case, the argument in favor of the injured woman, Beth, is very strong. Evidence can prove that Roger did not exercise the proper duty of care. He failed to take reasonable action to protect his customer from danger.
Knowing the machine was leaking, Roger should have increased the frequency of mop-ups. He also should have cordoned off the area and moved the vegetables further down, so people would not have to walk near the water. It was entirely foreseeable that less frequent mop-ups, and a failure to cordon off the area, would lead to a customer slipping, falling, and being injured.
There is no evidence of contributory negligence in this case. Beth didn’t do anything to contribute to her own injuries. There was no evidence of her running, or wearing improper shoes. And even if she was, her negligence would be heavily outweighed by the negligence of the supermarket owner.
Remember, slip and fall claims depend on establishing a property owner’s negligence. Proving negligence requires evidence the owner did not do everything reasonably possible to protect the injured person from harm.
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