Types of Premises Liability
Premises liability cases involve accidents happening on someone else’s property. In premise liability, property owners and businesses have a duty to provide a safe environment for individuals. Some common types of premise liability cases involve accidents for uneven floor surfaces, slippery surfaces, broken sidewalks, broken steps, uneven elevators, libel and slander, false arrest, landlord/owner responsibilities and criminal acts of third parties. Besides the common slip and fall accident, there are numerous other premises liability accidents which one must be aware.
Premises liability involves the property owner's responsibility when a person is injured on public and private properties including homes, public sidewalks, stores and restaurants. Property owners may be liable when their actions or neglect result in injury, wrongful death or damage to another person or property. Injuries range from a fall after tripping on a defective sidewalk to attack by domestic animals. Property damage could be caused by construction. At issue is whether the property owner exercised "reasonable care" to maintain safe premises. Property owners failing to do so are "at-fault" and could be ordered by the court to pay the injured person’s medical costs and other expenses. Property owners' responsibility for safe premises varies by state. So does the statute of limitations for filing a personal injury lawsuit.
Property owners need to take extra measures when they know they have possible hazards, such as chemicals for the lawn and garden or an over-protective dog. Even if warning signs are posted, and neighbors and others invited onto your property know of the possible dangers, the property owner may be held liable if an accident occurs.
A claimant is entitled to punitive damages in cases where it is proven by clear and convincing evidence that the owner’s actions showed willful misconduct, malice, fraud, oppression or entire want of care which would raise the presumption of intentional indifference to the outcome. An owner can be held liable for punitive damages arising from his own acts or from those of his employees in the scope of their employment. The issue of punitive damages will generally be presented to a jury in cases of malicious prosecution, false imprisonment and false arrest. A punitive damages award is limited to $250,000 in many states. The exceptions to this limit include cases where the employee or owner acted with the specific intent to cause harm, acted under the influence of alcohol, drugs, or were intentionally under the influence of sniffing glue, aerosol, or other toxic vapor to the degree that his or her judgment was substantially impaired.
Children are almost magically drawn to certain man-made hazards such as machinery and railroad turntables. Due to this, courts have created a legal fiction known as the attractive nuisance doctrine in order to force an owner to protect children from their own curiosity. The owner should anticipate that children could come onto the property simply because of the interesting nature of the machinery and take precautions, such as erecting a fence or other barrier to keep children and others away from the possible dangers.
An owner of land is liable for physical harm caused by an artificial condition upon the land if:
- The place where the condition exists is one upon which the owner knows or has reason to know that children are likely to trespass
- The condition is one of which the owner knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily injury to others, including children
- The children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it
- The utility to the owner of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved
- The owner fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.
There must be evidence to support all five of these conditions, or the owner is entitled to summary judgment. This attractive nuisance doctrine does not apply to a child who is an invited guest on the owner’s property.
The property owner's duty toward the care children that may be on their property is greater than their duty owed to adults. Even if the trespasser is a child or another that participate in dangerous behavior, the property owner must still take precautions to prevent foreseeable harm. A classic example of a property owner's greater duty of care to children arises in the context of backyard swimming pools, both in-ground and above-ground. Owners must protect their pools by using fences, gates, and locks to keep children from harm. They will be found liable for injuries to children, even trespassing children, and those that were warned to stay off the property if they fail to do so.
Slip and Fall
A slip and fall action is a type of personal injury lawsuit filed by a plaintiff who has been injured by a slip or fall, usually on the defendant's property. Plaintiffs in these cases include the grocery store customer who slips, due to liquid or a piece of food on the floor, falling and causing injury; or a hotel guest who slips in the shower and injuring their back. It must be shown in these cases that the owner of the property had been notified or had knowledge of the condition, yet failed to correct the problem within a reasonable amount of time. If a hazard is knowingly encountered, then the plaintiff may have trouble proving the defendant liable.
Generally speaking, pit bulls and rottweilers are known to be vicious dogs that tend to attack, many times without provocation. Many states have laws pertaining to these specific animals. Owners of any type of animal may be held liable for the injuries that animal causes to others. There is a difference from jurisdiction to jurisdiction, depending on the legal theory of recovery in the plaintiff's location, how easily a plaintiff may win a lawsuit pertaining to dog bits.
It may be required that the animal owner knew, or should have known, that their animal was inclined to attack or bite. The plaintiff may only need to show negligence on the part of the owner in other jurisdictions to recover compensation for his injuries. In the case of a wild animal, such as a bears, monkeys or others, injures to the plaintiff may be the responsibility of the animal's owner under a theory of strict liability regardless of the plaintiff's conduct.
"Dog-bite" statutes in various states are designed to address these variations. Some local municipalities may also have their own laws that also refer to the responsibility of pet owners, making them liable for the actions of their pets.
If the injured party is an adult, a defense to their claim may be that the animal was provoked. If a clear warning was given that an animal should not be approached in any way, and the injured party still proceeded to approach the animal, the owner may be able to avoid responsibility for the attack. This does not pertain in most cases if the plaintiff is a child.
Once it is established that the animal owner is responsible for the injuries, it must also be determined what the amount of the damages are. Evidence, such as doctor and/or hospital bills, showing the amounts charged to treat the injury must be provided. Lost wages may also be recovered if the injury kept the plaintiff from performing his or her job duties. Any permanent disability caused by the injury, as well as compensation for pain and suffering may also be recovered.
It is required by law that all elevators, other than hand elevators and power and hand dumbwaiters, and all escalators must be inspected every six months and must comply with American National Standard Safety Codes. If an elevator or escalator is involved in an accident, it must be removed from service immediately until inspected by a certified inspector. Once it is inspected, it may not be placed back into service until inspected again. Any deviation from this rule and repairs the elevator is made or it is placed back into service after an accident without inspection, any claimant from the accident is entitled to a rebuttable assumption that the owner was negligent in its maintenance. The exception to this is if there is no evidence, either before or after a fall, which the elevator failed to function properly, even if the owner violated the statute by failing to allow inspections.
Because elevators and escalators are mechanical devices, they unavoidably break down and sometimes become dangerous and cause injury without negligence on the part of the owner. Owners must have been able to discover the problem prior to the malfunction in order to hold the owner liable for the resulting injuries. For example, when a malfunction occurs due to the failure of an axle bearing, and there may be no way to predict the bearing’s life expectancy or when it will give out. In this case, the owner may not liable for the claimant’s injury. However, if visual inspections during routine maintenance of escalators or elevator may have revealed a problem, then an issue exists that may cause the owner to be liable for an injury resulting from a subsequent malfunction.
Injuries due to automatic doors on the premises are more difficult to prove owner liability. Owners do not have an extraordinary duty of care in regards to these. If an automatic door unexpectedly closes, causing injury to a customer, a store owner is held liable only if there was prior knowledge of a problem with the door or failed to have the doors inspected in a reasonable manner. If a walker is used to go through a revolving door and someone is injured during this process, the owner is not responsible unless there is evidence that the door malfunctioned. Automatic doors may open in the wrong direction until manually reset. If this is not done, then the owner may be held liable for an injury that was caused by the doors opening incorrectly.
Private Pools. Children are attracted to swimming pools, creating a situation where occasionally the child will sneak onto someone’s property and go swimming. These are called attractive nuisances for which an owner may be liable if adequate precautions to limit access to pools are not taken. Erecting a suitable fences around the pools usually insulate owners from liability for an injury, particularly to a trespassing child. If the latch to the primary gat or if the fence around the pool is missing a section where children may crawl under it, then an issue exists regarding the liability of an owner in the case of a child’s drowning.
If the child is on the property as a guest of the owner, the child’s parents cannot recover when he drowns in the owner’s pool, even if there is no gate on the pool. This is due to the parents’ knowledge of the pool’s existence and it is an open and obvious condition wherein the child is not a trespasser, eliminating the attractive nuisance doctrine. If the child is expected to be supervised by their parents, an owner is not responsible for a child’s drowning, particularly when there is no defect in the pool itself. If proper equipment or supervision is not provided while guests are using a private pool, owners may be held liable for injury. For example, failure to repair broken lights creates issues as to the responsibility of the owners for the drowning of a teenager during an evening party.
Public Pools. Public facilities are potentially liable for injuries when they fail to provide boundaries, such as lifelines, between deep and shallow ends as well as qualified lifeguards on duty as required by county regulations, even if the injured party is unaware of the failure to provide these safety precautions. If there is evidence that the lifeguard has failed to supervise swimmers in a proper manner, the public facility may also be held liable.
Personal Responsibility. If you, or someone you love, dives into a pool or lake and is injured when his head strikes the bottom, there is potential liability for an owner. The owner’s liability is extremely limited when the injured party is negligent by not checking the water’s depth, dives into a pool with black water without checking the depth, or is familiar with the depth and dives in anyway. However, if a diving board is present at a pool, the owner does have a duty to warn guests as to hidden perils of diving, such as the water under the board is only four foot deep.
Certain states, such as Georgia, have special legislation passed to encourage owners of land to make land and water areas available to the public, that limit the owner’s liability toward persons entering the premises for recreational purposes. If you have been injured in public or private pools, lakes or other related areas, an experienced premises liability attorney will be able to assist you with the laws in your area.
Patrons at sporting and stadium events expect to find discarded items on the ground and cannot usually recover for slipping and falling on them. Owners of facilities that hold large sporting and stadium events are not liable as other businesses to keep the premises clean. Not all patrons at these events consciously clean up after themselves or others and constantly throw food, beverages and containers on the ground. The great hardship on the stadium owner to require constant inspections and removal of all debris and trash would negate any profitability to ownership. Patrons may not usually recover for slipping and falling on the debris of others in these facilities.
Scope of Employment
Employers are liable for vicarious or imputed liability of the actions of employees whether or not employees act negligently or intentionally. As long as employees are not engaged in private and personal matters of their own, and are acting within the realm of their employment by engaging in the employer’s business at the time of any injury, employers may be liable. If the employee was acting on the behalf of his or her employer at the time of the injury, on or off the clock, the employer may be liable. A liberal interpretation of the scope of employment is endorsed by the courts, even if the acts were unlawful, unauthorized, or forbidden. This is true as long as the conduct is within the general duties of employment for which the employee was hired. This generally does not include when an employee is driving to or from work.
Employer liability may be limited when considering the employee’s motivation. If the employee has personal animosity toward a claimant, the employer cannot be held liable. If an argument arises from how an employee is completing his or her work, the employer may be held liable even if the employee displays a personal dislike for the customer and the actions were intentional. If it is part of the employee’s job description to resolve customer complaints, dealing regularly with customers, employers may be held liable for an assault resulting from the employee’s attempt to resolve the customer complaint. If it is not part of the employee’s job description, and they are not authorized to interact with customers, the employer may not be held liable for assaults that occur if an employee attempts to detain a customer.
Employers are not responsible for the actions of independent contractors when contractors exercise independent businesses that are not subject to the control or immediate direction of the employer. It is difficult at times to determine whether an individual is an employee or an independent contractor. The status is decided by how much control is exercised by the employer. Independent contractors are normally listed as such in their contract for employment. Whether or not the employer ever actually exerts control over the performance of the independent contractor, if it is specifically called for in the contract, then the relationship is one of employee/employer. Although this is a general rule regarding independent contractors, there are other circumstances where the owner may be liable for accidents on their premises in this situation. An experienced Premises Liability attorney will be able to review the specific laws in your state that pertain to your situation.
Hiring and Retention Negligence
If an employer potentially knew or should have known of potential risks when hiring an employee, they may be liable for the acts of that employee if they cause an injury. It must be proved by the injured party that the employee was unsuitable for that particular position or their background procedure check of potential employees was faulty or unreasonable. For example, if the employee had a background of violent or criminal inclinations, the employer is potentially liable for any physical attacks by the employee. Depending on the kind of work to be performed, employers have a higher duty to investigate the employee’s background. This does not pertain for employees of an independent contractor where the owner did not actually hire the employee.
False Arrest and Imprisonment
An extensive number of lawsuits against owners relate to the detention and arrest on suspicion of shoplifting or other such misconduct. If there is no probable cause of the person committing a crime, actions may be filed for false imprisonment as the person was unlawfully detained, no matter how long the detention lasted as they were deprived of their personal liberty. The definition of probable cause is that there is existence of facts and circumstances reasonably showing that the persons charged were guilty of the crime for which they were arrested.
A detention need not consist of physical restraint, but may arise out of words, acts, gestures, which specify a reasonable apprehension that force will be used if the claimant does not submit. If the claimant agrees of his own free will to surrender his freedom of motion, as by remaining in a room or accompanying the owner or his employees voluntarily, to clear himself of suspicion or accommodate the desires of another, rather than yielding to the constraint of a threat, then there is no imprisonment. When a claimant consents to a search of his person, there has been no imprisonment as a matter of law, and the claimant cannot maintain an action against the owner. In addition, there is no imprisonment when an employee merely asks a customer a question, and the customer’s response does not require further action on the part of the employee.
A claimant can bring an action for false arrest if the owner acts with malice and without probable cause in arresting him. An arrest can be made with a warrant or without a warrant. An arrest is accomplished whenever the personal freedom of another to come and go as he pleases is restrained, no matter how slight such restraint may be. Malice consists of personal spite or general disregard of the right consideration of mankind, directed by chance against the individual injured. Malice is presumed if the owner has a total lack of probable cause to make an arrest.
As long as an owner has probable cause to suspect someone of a crime on his or her premises, they may not be held liable for an ensuing arrest. Even if the accusations are inaccurate, as long as the owner maintains a reasonable belief that a crime has been committed, they may not be held liable for a detention that turns out to be unsubstantiated. There are several reasons that owners (or their employees) have probable cause to detain someone. These include the appearance of making unauthorized credit card purchases, criminal trespass (refusing to leave after repeatedly asked to do so), and possible merchandise theft (suspicious activity leading to probable cause). The owner must also investigate sufficiently before detaining a possible criminal by checking on the reliability of both the source of the accusation and the reputation of the detainee. The owner must also review the detainee’s explanation for the incident, as well as the reason for prompt action by the employee. If a police officer is involved in the suspicion and subsequent detention of the accused, the owner is not liable for the arrest. Only if the police officer is relying on the statements of the owner’s employee, and they turn out to be false, may the owner be held accountable for any damages.
If an owner of a property prosecutes you for a crime without probable cause, you may have grounds to have the owner prosecuted for malicious prosecution. Criminal proceedings are initiated against the claimant first, as required by the tort of malicious prosecution. The judge will determine if there was probable cause at a preliminary hearing on this criminal charge. The burden of proof is then the claimant that probable cause did not exist that led to his arrest, and there was malicious motivation for the incident. If the owner simply states facts to an official who then makes his own decision to arrest or prosecute the claimant, then the owner cannot be held liable for the claimant’s prosecution. There is potential liability if the owner urges a law enforcement official to begin criminal proceedings or misleads the official with false information, whether this is done directly or indirectly by the owner. If the owner fails to investigate personally to determine the truth, he may also be held liable in the case of improper prosecution. The claimant must prove that the prosecution has been terminated in his or her favor. A compromise with the prosecutor negates any possibility for a malicious prosecution suit.
Libel and Slander
An owner may be liable if it appears the owner directed the employee to relate specific words creating a false account regarding a customer. Even if the employee is acting within the duties of his position and to the benefit of his or her employer, the owner may not be liable and any case may be resolved by summary judgment due to lack of authorization. Summary judgment only applies in slander cases and allows the judge to decide for either the claimant or defendant.
Depending on the account, if it is verbal or print, the customer could possibly bring an action for defamation in compensation for the injury. By definition, slander is oral defamation, libel is written defamation. Libel is a false statement in any type of print, including writing, pictures or signs that injure the reputation of the claimant, exposing the possibility of public ridicule or contempt. There are several conditions to prove slander. It includes verbal defamation of a person’s character. These include but are not limited to:
- Falsely accusing them of a crime punishable by law
- Having a contagious disorder
- An act that may exclude him or her from general society
- False behavior regarding their trade, office, or profession in a calculated way to injure professionally
- Causing special damage by uttering any critical words
Causing special damage must be specifically proven, while the other accusations are assumed. To prove a case of libel or slander, the accusation must be given to someone other than the person accused. If the statement, oral or written, is actual truth, neither liable nor slander may be shown.
Claims for libel or slander may not be based on certain communications that are deemed privileged. These include, but are not limited to:
- Fairly made comments of an attorney regarding circumstances and conduct of parties involved in a case which he or she is involved
- Statements made in the performance of a public duty in good faith
- Honest and fair reports of the proceedings of judicial or legislative bodies
- Statements made in the performance of a legal or moral private duty in good faith
- Honest and fair reports of court proceedings
- Statements made on the part of the speaker to protect his or her interest in a matter in which it is concerned with good faith
- Reports of information from any arresting officer or police authorities held to be truthful
- Statements made as part of an act in furtherance of the right of free speech in good faith
- Reference to the acts of public men or public women in their public capacity. The right to claim the privilege to comment is lost if it was used only to vent private malice.
Emotional Distress-Negligent or Intentional
Emotional distress may be a cause for a claim in a civil suit. If the offender merely curses, that is not sufficient for a claim. Only if it can be proven that owner’s employee had conduct that was extreme and outrageous, causing intentional or reckless infliction of severe emotional distress and that there is a casual relationship between the conduct and the emotional distress may charges be filed by a claimant.
The employee’s actions must be intentional or reckless, and not just merely negligent. The conduct must also go beyond all reasonable bounds of decency, to be regarded as atrocious and utterly intolerable to the in degree of being extreme. An example of an exception is where a jury issue exists, where the claim is subject to evidentiary proof, such as a customer’s claim of emotional distress due to a pharmacist, believing the customer was falsely attempting to obtain prescription drugs, notified authorities of the customer’s supposed fraud.
Alleged mental or emotional injuries, resulting from the actions of an owner or his employees, are often the subject of claims. Claimants may not recover for negligent infliction of emotional distress unless he suffers a physical injury resulting from an actual impact, regardless of the degree of mental anguish. For example, if an armed man breaks into an apartment, robbing without touching, there is no recovery against the apartment complex. Failing to maintain adequate security does not apply when contact with the tenant does not occur.
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