When someone is injured by a dangerous condition they encounter when visiting a location – like an uneven service, a slippery floor in the supermarket, or a malfunctioning door in a building – the consequences can be catastrophic. These accidents can cause debilitating injuries, not to mention enormous pain and suffering, plus emotional distress. Those responsible for the negligence that creates these dangerous conditions should compensate victims, but the compensation will not come easy. Plaintiffs’ lawyers in personal injury cases need to be aggressive, diligent and willing to lay out the necessary funds to secure the right experts required to obtain favorable outcomes.
A plaintiff in a premises liability case must establish the negligence of the person or entity in control of the place where they got hurt. To accomplish this, a plaintiff must show that:
(1) the defendant owed the plaintiff “a duty of care”;
(2) the defendant breached that duty; and
(3) the defendant’s breach of duty proximately caused the plaintiff’s injuries.
A major preliminary issue is what duty is owed by the defendant owner, or occupier of land that controlled premises where the injury occurred, to a person entering the property. For example, the duty of care one owes to an adult trespasser is far less than the duty a proprietor of a business owes to a patron. Thus, an occupier of land must only refrain from actions which willfully injure an adult trespasser. But, a possessor of property who maintains an artificial condition will be held liable for injuring a child trespasser by an artificial condition, if the plaintiff can prove:
(1) the possessor of the property has reason to know children are likely to trespass;
(2) the possessor of the property has reason to know that the condition involves an unreasonable risk of serious bodily harm to children,
(3) the children either
(a) do not discover the condition,
(b) do not realize the risk involved by trespassing in that area of the property made dangerous by the condition, or
(c) do not realize the risk involved in intermeddling with the condition,
(4) the utility of maintaining the condition and burden of eliminating the danger are slight as compared with the risk to the children involved, and
(5) the possessor of the property fails to exercise reasonable care to eliminate the danger or otherwise protect the children.
As for the duty owed to people who enter property with permission, or at the invitation of a person in control of property, the duty owed to those visitors depends upon whether the visitor is a social guest or a business invitee. The duty owed is to social guests is less than the duty owed to someone who visits a property as a business invitee.
A host has no obligation to make their home safer for a social guest than for themselves and they do not need inspect the premises to discover defects that might cause injury. But, if a host knows or has reason to know of something on the premises which could pose an unreasonable risk of harm that the social guest could not be reasonably expected to discover, the host owes a duty to exercise reasonable care to make the condition safe, or to at least give warning of the risk. Thus, a property owner will be liable for a guest’s injury due to a condition on the property if the owner had reason to know of the dangerous or defective condition, should have realized it involved an unreasonable risk of harm to guests, should have known that the guest would not discover it, and failed to protect the guest from the danger by either making the condition safe or at least warning the guest about the risk. However, if the defect was so obvious that the social guest should have been aware of it, the owner will not be held liable.
The duty owed to non-social guest, commonly referred to as “invitees,” is greater than what is owed to a social guest, and puts an affirmative duty on the person or entity in control of the land to protect the invitee against dangers they know of and also those that, by reasonable care, they may discover. Typically, an invitee comes by invitation, express or implied, generally for some business purpose of the owner, like a patron of a bar, supermarket or a sports stadium; but this duty of care also applies when there is a general invitation to the public to come to a place or event where the occupier of the land is not expecting any pecuniary benefit, like a person attending a free public lecture, for example.
It is only to these invitees, such as business patrons and clients, that someone in control of a location owes a duty of reasonable care to guard against any dangerous conditions on the property that the owner either knows about or should have discovered. This means that when someone controls a premises where people can come for potential business, or that is open to the general public, that person has duty to conduct a reasonable inspection to discover latent dangerous conditions. Thus, the duty of an owner/occupier of land (or premises) to make the place reasonably safe for the proper use of an invitee requires the owner/occupier to make reasonable inspection of the premises to discover such hazardous conditions.
Accordingly, whether or not a condition is hazardous is a major determination and almost always requires an expert opinion. Typically, a licensed civil engineer is needed to observe the condition, consider relevant standards and regulations, and then opine about the prospect of the condition causing injury in the form of a report. This effort costs money and it is important that a lawyer expends the resources to secure an expert to provide a report and, if necessary, testify at trial. Occasionally, the expense of such an expert can be avoided, and, therefore, the ultimate recovery to the client would be larger, if a lawyer can negotiate a reasonable early settlement; but typically, an expert should be retained early to observe the premises before a defendant takes remedial action (i.e., anything that may be done to correct the dangerous condition(s)). At a minimum, evidence of the condition should be secured as soon as possible by, for example, taking photographs.
But, proving that a condition is hazardous alone is not enough, because once it is established that the plaintiff was injured by a dangerous condition, he or she must show: that the defendant owner/occupier of land had either: (1) actual notice of the condition enough time before plaintiff’s injury to permit the owner/occupier to have corrected it; i.e. they actually knew about the unsafe condition ; or (b) had constructive notice. “Constructive Notice” means that the dangerous condition existed for long enough that the person in control of the premises should have discovered it had they exercised reasonable care. Accordingly, someone in control of a dangerous condition is deemed to have notice of the unsafe conditions that exist for long enough that a person of reasonable diligence would have discovered them. Again, expert assistance here is crucial, as an expert can opine on what a person in control of land or premises should do to reasonably find out that a dangerous condition exists. Additionally, a lawyer may have to conduct discovery and take a variety of depositions of representatives of a corporate, defendant in control of a dangerous condition in an effort to secure admissions, such as that the defendants were actually on notice, or that they were dilatory in their responsibility to inspect for dangerous conditions.
Importantly, if the premises was not safe and the owner/occupier of the land or their employee created that condition, through their own actions, like, for example, mopping a floor and leaving it wet and slippery without a warning sign, then the plaintiff does not need to prove actual or constructive notice.
Additionally, there is no notice requirement for a dangerous condition in certain types of businesses. Under the “Mode of Operation Rule” a proprietor of business that allows its customers to handle products and equipment in a self-service setting, unsupervised by employees and the self-service activity caused the dangerous condition that in turn caused the plaintiff’s injury, then the plaintiff is relieved of the having to prove proving that the defendant had actual or constructive knowledge of the dangerous condition.
However, just because a plaintiff can prove that they were injured by a dangerous condition, and that the property owner/occupier knew or should have known of the dangerous condition does not relieve the plaintiff of their own duty to be aware. A jury will be asked whether or not the plaintiff’s own negligence contributed to his or her injuries.
Furthermore, a defendant can try to escape liability by asserting that the dangerous condition was obvious, and that the plaintiff should have realized the hazard. But, although an unsafe condition may be observable, a jury can still find that the person in control of the premises was nevertheless negligent if it presents an unreasonable hazard to invitees in the circumstances of a particular case.
While a person in control of premises is required to provide a reasonably safe place for use by invitees permitted to come on the property, if the owner/occupier of the premises knows of an unsafe condition, they may be able to satisfy the duty by giving warning of the unsafe condition. It is ultimately up to jurors to determinewhether a warning was adequate to meet the duty of care owed to the invitee or guest. In this regard, one should consider the nature of the defect or unsafe condition, the prevailing circumstances, and the likelihood that the warning given would be adequate to call attention to the invitee of the hazard and of the need to protect against said hazard.
Finally, if a plaintiff can prove liability, in other words, demonstrate that the defendant failed to live up to its duty of care to either provide a safe condition, or give adequate warning of an unsafe condition, and it is shown that the dangerous condition caused the plaintiff injury, the lawyer will need expert testimony to demonstrate that the plaintiff suffered damages. To recover money in such a case for pain and suffering or impaired bodily function, medical expert testimony will be required to opine about the causal connection between the accident, the dangerous condition and the injuries alleged. Frequently, defendants will have their own experts to opine that these injuries were pre-existing, and not caused by an event like a trip-and-fall. Moreover, sound expert advice is needed to prove the extent and potential permanency of the injuries. Of course, the plaintiff has ability to recount how the injuries have impacted them, and this will have a lot to do in determining the value of the injuries. To the extent the plaintiff is claiming emotional distress as an injury, the plaintiff will also need expert testimony from a mental health expert to both: (1) link the injury to the mental health issues top the accident and (2) explain the severity of the emotional distress. At the end of the day, whether it is used to get a good settlement, or to persuade a jury to provide a high verdict, a plaintiff will need to have high-quality medical expert testimony and/or an expert report, and this will require that a plaintiff lawyer be willing to expend the needed funds to secure it.
With all of the above said, when the defendant is a municipality, such as a town or a city, there are special requirements for seeking compensation for an injury. These include a requirement for the plaintiff to file what is known as a Tort Claim Notice with the municipality within 90 days of suffering their injury.
Securing a good outcome in a premises liability case is not easy. It requires diligent lawyers who will spend time and effort to investigate, review documents and depose witnesses to get the necessary facts to support the claim. Additionally, it requires lawyers who will spend the funds on experts to put the case in a good posture for negotiated settlement or litigated verdict. At Matsikoudis & Fanciullo, we take pride in our work and consider it a scared obligation to do the best we can to secure the best possible results for our clients.