Premises-liability cases form one of the largest subcategories within the broad spectrum of personal injury/tort law. For example, many judicial opinions involve personal-injury actions brought by entrants against owners or occupiers of land. This area of law is currently in flux, as courts have been modifying or affirming traditional rules limiting the duties owed by owners and occupiers to entrants, generally either tenants or customers.
The varied circumstances in which a person’s injury may be attributable to premises owners or possessors make the help of personal injury attorneys like those available through of David I. Fuchs invaluable in making sure fair compensation is obtained. This overview will present background information on the area of premises liability law, and then outline ways in which a personal injury attorney can help you successfully navigate this sometimes complex area of the law if you were injured on someone’s property.
Background on the Area of Premises Liability Law
Generally, this overview covers the liability of owners or occupiers of land. While the terms “owner” and “occupier,” along with “possessor” and “landowner,” are used interchangeably throughout, it is nevertheless important to differentiate among the various categories of defendants found in the premises-liability context, and to make mention of persons other than owners, occupiers or possessors who might be liable for harm to entrants.
In most premises-liability cases, one person is both owner and possessor of the land, in which case no question arises as to responsibility for the safe maintenance of the premises. However, where ownership and possession are divided, the general rule (subject to certain exceptions) is that the possessor or person in control of the premises is liable for injury suffered by entrants as a result of conditions or activities that violate a legal duty owed by the possessor to entrants.
The accepted law in most jurisdictions define a possessor of land as (a) a person who is in occupation of the land with intent to control it, or (b) a person who has been in occupation of the land with intent to control it, if no other person has subsequently occupied with intent to control it, or (c) a person who is entitled to immediate occupation of the land, if no other person is in possession under (a) and (b). “Possession” is thus a question of fact involving occupation and intent to control the particular area where the injury occurred.
A Landlord’s Liability for your Premises Injuries
A common situation in which persons are injured in the premises liability context is when a landlord is considered in possession of all areas on the premises used in common by the tenants (common areas). In these situations, close fact questions dealing with who has control arise, especially when harm results from defective stairways and porches. Landlords may be liable for harm sustained by entrants, including tenants, while in these areas. However, the landlord will generally not be liable for injuries occurring in areas within the exclusive possession of tenants.
Many leases contain exculpatory clauses which seek to relieve the landlord from any liability to a tenant for injury caused by the condition of the premises. If you were injured and your lease contains one of these clauses, a personal injury attorney will be able to assess whether or not the clause will prevent you from recovering for your injuries.
The courts have traditionally upheld the validity of such clauses. However, an otherwise valid exculpatory clause will not relieve the landlord of his duty of care to persons who did not sign the lease and who were subsequently injured on the premises. A number of courts have declared landlord-tenant exculpatory clauses invalid as against public policy. Some states have enacted statutes declaring exculpatory clauses invalid.
One area in which premises liability law has undergone significant changes relates to common-law limitations on the landlord’s duty of care. These changes reflect the growing urbanization of American society and a concurrent shift in economic and social values. This trend is due in large part to the increasing reality that tenants who lease defective premises are likely to be less well-off and unable to make the necessary repairs which their own safety and that of others may demand; that one who is in possession of the premises only for a limited term does not have the same incentive to maintain them in good condition as the lessor to whom they will revert at the end of the lease; and that the landlord who receives benefit from the transaction in the form of rent may properly be required to assume in return at least certain limited obligations with respect to the safety of others.
Courts have recognized a duty in cases involving latent defects in the demised premises, portions of the premises held open for public use, the repair of conditions which become dangerous after the landlord transfers possession to the tenant, areas and instrumentalities under the landlord’s control, and the activities of third persons. In addition, many legislatures have enacted statutes expanding the landlord’s duties. Several courts have taken an entirely new approach to landlord-tenant cases, and have postulated a general duty of due care, while a rule of strict tort liability has been applied to landlords in one jurisdiction.
A basic exception to the common-law rule granting a landlord immunity from liability for defects in demised premises is that the landlord may be liable for injuries caused by latent defects which existed at the time of the execution of the lease. The courts have imposed upon the landlord a duty to disclose to the tenant the presence of defects which may create an unreasonable risk of harm if the landlord knows, or has reason to know, of the danger. The defect must be unreasonably dangerous, involving an unreasonable risk of foreseeable harm, and it must be in existence at the time of the leasing. The exception was inapplicable where there was no allegation or evidence the dangerous condition existed at the time the lessee took possession.
This liability derives from concealment, rather than from a duty of care to keep the premises in a reasonably safe condition. However, an injured plaintiff does not need to plead and prove fraud or misrepresentation in order to recover since the basis for liability is negligent failure to disclose the latent defect. Instead, the lessor will be liable for undisclosed dangerous conditions of which he knows, or should know, if the lessee does not know or have reason to know of the condition or the risk involved, and if the lessor has reason to expect that the lessee will not discover the condition or realize the risk.
Thus, a defect will be considered latent when the tenant does not know of its existence, and it is not discoverable by the tenant in the exercise of due care. Once the tenant is aware of the danger, he cannot recover since liability is based upon the landlord’s concealment of the defect. Therefore, the landlord is not liable for injuries caused by open and obvious defects.
If the tenant is aware of the defective condition but does not realize the risk of harm, and importantly, could not appreciate the risk even in the exercise of due care for his own safety, the landlord will still be liable if he knew of the danger and failed to warn the tenant. Thus, one court held that although a crack in a fireplace was easily visible, the risk of fire created by the crack was not obvious, and therefore, the crack constituted a latent defect. Similarly, while electrical wires protruding through a floor were found to be visible and patent, the tenant’s lack of knowledge that the wires were energized was held to justify a holding that they amounted to a latent defect.
Landlords have been held liable for failure to warn of latent defects such as a disease-infected house or farm, worn treads on a stairway, steep basement stairs which lack a handrail or landing and which descend just behind an inward-swinging door, weak stair railings, ceilings, and floors, a polluted well; and a submerged rock in a swimming area. However, in other cases, courts have relieved landlords from liability for injuries caused by such patent defects as empty electrical sockets, defective brackets, a crack in the porcelain handle of a water faucet, a gas heater with open flames, a hot, exposed heating pipe, and protruding nails.
Even if you were not a tenant when you received your injury, the landlord of the premises may still be liable for your injuries. The duty of the landlord to disclose latent defects to the tenant extends to other persons who may enter the premises with the consent of the tenant. Landlords have been held liable under this rule for injuries to members of the tenant’s immediate family, the tenant’s invitee, a social guest, and an employee. However, courts have held that the landlord’s duty to such persons is no greater than that owed to the tenant. If the tenant could not recover, neither could persons coming on the land with his consent.
Landlords can also be liable for not providing protection against dangerous conditions on premises which are leased for a purpose involving the admission of the public. The landlord might be liable when he knew or, in the exercise of due care, he should have known of the hazard, and when he had reason to expect that the lessee would admit the public before the premises were put in a reasonably safe condition. The landlord’s duty could be fulfilled by exercising due care to discover defects, repairing any defects found, warning of them, or otherwise protecting those who might be injured by them, depending upon which remedial action would be reasonable under the circumstances.
The crucial element is the landlord’s knowledge that the premises will be opened to the public in the same condition existing when possession was transferred to the tenant. The fact that the tenant also may have a duty to make the premises safe or to disclose the existence of dangerous defects to persons coming on the land will not discharge the landlord’s legal obligation. Even the tenant’s covenant to repair has been held not to exonerate the landlord.
In order to recover against the landlord, the injured person must have entered the premises for the purpose for which the premises were held open to the public. Thus, the courts have denied recovery to a salesman calling upon the tenant who managed the landlord’s filling station, a creditor attempting to collect a debt from the tenant who operated a public garage, and a visitor entering a bar to use the toilet rather than to imbibe. In these cases, the denial of liability rests upon the fact that the injured entrant came upon the premises for his own purpose, rather than for the public use. Moreover, an employee of the lessee acting within the scope of her employment is not considered to be a “third person” protected by the public use exception. Other courts have expanded public use by holding the landlord liable when the entrant came upon the land for a purpose foreseeably related to the public use, as when a banker entered a tavern to solicit the tenant-proprietor to open a bank account.
However, recovery has been denied to members of the public who were injured in the greasing room of a service station, the back room of a repair shop, a storeroom in a food store, or on the stage of a motion picture theater.
The fact that the tenant did not charge admission generally does not affect the characterization of the premises as a public use. A free piano recital, a Salvation Army meeting, and a science lecture have been held to fall within the public-use rule. In addition, the fact that the tenant pays no rent to the landlord has been held to have no effect on the rule, since the landlord’s duty is to the general public and does not derive specifically from his relationship with the tenant.
Other situations give rise to landlord liability, even when the landlord is not in possession. A landlord who is not in possession or control of his premises may still be liable for failing to disclose a latent defect existing on the demised premises at the commencement of the tenancy, for breaching a duty to repair arising from the common law, a statute, or contract, or for failing to provide adequate security. Most significantly, you would not have to necessarily be a tenant to recover from the landlord if you were injured. Under such circumstances, an injured entrant who is not a tenant may also have a cause of action against the tenant for breach of the tenant’s duty as a possessor.
In one particular area, involving the obligations of possessors and landlords to protect entrants and tenants from the risks of harm from criminal assaults by third persons, there has been considerable change. In another common situation, the duties owed by occupiers to persons outside the premises have expanded considerably in cases seeking to impose liability for the sale or dispensation of alcoholic beverages. Tavern owners and other sellers, as well as social hosts and employers, have been held responsible for negligently selling or serving liquor to patrons, guests or employees. This is in a sense an extension of the duty owed by business invitors and social hosts to persons on their premises, adapted to the realities of modern society.
Even persons or companies that do not have an ownership interest in the land may be held liable for injuries you suffer. An independent contractor to whom an owner has given possession of land for the performance of work thereon will be subject to the same duties of care as any other possessor. Fact questions particular to each case relating to control may arise in determining whether possession has passed to the independent contractor or remains in the owner. But even when the independent contractor is in possession of the premises, the owner may still be liable for on-premises injuries. Though the general rule is that the owner is not liable for harm caused by acts or omissions of the contractor relating to conditions or activities on the land, the owner has a non-delegable duty (in other words, he/she cannot escape liability) to maintain the premises in a reasonably safe condition for lessees and invitees.
The owner also has a duty of care to hire a competent contractor, and may be liable for the contractor’s failure to take reasonable precautions during the course of work involving inherent danger. Therefore, the landlord could be held liable for your injuries if he/she did not adequately investigate the safety record or competence of a contractor and you are injured by the contractor.
Other Persons that may be Liable for your Premises-related Injuries
Persons other than the landlord can be held liable for your injuries suffered on the premises too. A person other than a possessor, a member of the possessor’s household, or someone acting in the possessor’s behalf may be liable for harm caused by the creation of a dangerous condition on the land when he knows or should know that the condition creates an unreasonable risk of harm to entrants, including trespassers. In one situation, a power company holding an easement to maintain lines and poles over a third party’s property was held liable for the death of a trespassing child who climbed a tree through which one of the power lines ran. By contrast, a driver for a store “enjoys the same immunity from liability” as his employer-possessor, since he was “plainly acting on its behalf.”
While a vendor of land (someone who is selling) is generally not liable for harm caused by defects on the premises arising after the vendee has taken possession, the vendor has a duty to disclose to the vendee any unreasonably dangerous conditions of which he knows or has reason to know and which he has reason to believe the vendee will not discover. The duty continues until the vendee has had a reasonable opportunity to discover and remedy the condition.
Parties that you may not think of as being potentially liable for harm could nevertheless be subject to liability for your injuries. A realtor, real estate broker or salesperson in possession of property being shown to a prospective customer may be liable for harm suffered by the customer from a dangerous or defective condition on the premises. If the realtor is not in possession, he may still be liable for on-premises harm to a customer under ordinary principles of negligence law.
With regards to builders, the general rule today is that they may be liable for harm caused by his failure to disclose the existence of a dangerous condition of which he knows, or for his negligent performance of the work. Even the fact that the owner of the premises has accepted the builder’s work will not affect the builder’s liability. The builder’s duty to exercise reasonable care is analogous to that of the manufacturers of chattels. The duty also extends to architects and engineers. Also, a growing line of judicial authority imposes strict tort liability upon builder-vendors for defects in the construction of mass-produced housing.
Sometimes, a dangerous condition on the premises is created by the defective construction or design of a chattel or by inadequate warnings or directions for the use of the chattel (personal property). In these cases, an entrant injured as a result of the condition may be able to recover from the manufacturer or seller of the chattel under any of the various theories of products liability. A business invitor-seller of a product may be held liable for a plaintiff’s injuries on joint theories of premises liability and products liability where both duties are breached to an invitee-purchaser.
For example, in one case a defendant placed a bottle of bleach with a loose top on a high shelf. This defendant was found liable to the plaintiff, who suffered eye injuries from a spill, under an implied warranty of merchantability and a theory of invitor-invitee liability, the latter for placing such a caustic substance at a high level, thereby enhancing its dangerousness, and for not using a “leakage preventor” on such products.
Statutes that may Affect your Premises Liability Case
More than forty states have enacted laws which substantially limit the duties of landowners, occupiers, tenants, lessees or persons in control of premises toward visitors who enter for recreational purposes. Your personal injury attorney will know if statutes such as these are in force in your state. Known as “recreational use” statutes, these laws generally provide that if the landowner or occupier exacts no “charge” or receives no “consideration” from a visitor who enters for recreational purposes, the possessor will not be liable for injuries to the entrant caused by the possessor’s negligence with respect to any condition or activity on the land. The statutes generally limit liability to injury caused by the possessor’s “malicious or willful” failure to guard or warn against a dangerous condition, use, structure or activity. Some recreational statutes limit coverage to “rural” land or land used for agricultural, forest or ranching purposes. Courts have generally refused to apply the statutes to residential property.
The recreational use statutes place entrants in two categories: (1) those who give some “consideration” or “charge,” to whom a general duty of due care would be owed (a class roughly analogous to that of the common-law “business visitor”, depending upon the court interprets the terms “charge” or “consideration”) and (2) those who furnish no consideration and who are treated, at best, as common-law trespassers.
Thus, when a landlord receives no consideration or charge, the possessor owes a duty merely to refrain from willful or malicious failure to guard against dangerous conditions or activities. He has no duty of reasonable care to keep the premises safe or to warn of dangerous conditions or activities.
The limited duty imposed by the recreational statutes is similar to that owed by the possessor to an unknown trespasser at common law, or to the duty owed to licensees in some jurisdictions. Some of the statutes specifically provide that the duty of the owner to a recreation-seeking visitor entering without charge is the same as that owed to a trespasser.
Classic Premises Liability Injury Situations
Some situations or what personal injury attorneys call “fact patterns” recur again and again in premises liability cases. Two are considered in this section, and a third will provide the backdrop for the next section on how a personal injury attorney can specifically help with your premises injury case.
The accumulation of ice and snow, and liability for injuries caused by it, are a common situation of premises liability. Generally, a landlord had no duty to keep common areas free of natural accumulations of ice and snow. This rule, known as the “Massachusetts rule,” is a restrictive limitation which has survived to the present day. However, states have carved out exceptions which allow injured plaintiffs to recover.
A landlord who, by covenant or gratuitous promise, has obligated himself to remove ice and snow from common areas may be liable for personal injuries caused by his failure to do so. In addition, a duty may arise when the landlord has gratuitously removed ice and snow in the past, thereby engaging in a course of conduct upon which the tenant reasonably relies to his detriment. In either instance, however, the landlord will not be liable unless he knew, or should have known, of the slippery condition in time to remedy it.
New York courts use a variation of the “Massachusetts rule” and impose upon the landlord a duty of care only when the natural accumulation has become unusually dangerous. Thus, if the ice and snow have caused ridges, or the hazard has increased during the course of a removal job, the landlord has been held liable. In such cases, the plaintiff must prove that the landlord had actual or constructive knowledge of the unusually dangerous condition and that he had an opportunity to remedy it.
However, a majority of states now impose upon the landlord a duty to use reasonable care to remove natural accumulations of ice and snow from common areas. The landlord is entitled to actual or constructive notice of the condition and a reasonable time in which to remove it. The courts will presume notice when the ice and snow had remained for a long enough period of time for a reasonable person to have discovered and removed it.
Another classic example of premises liability has to do with fire escapes. When a fire escape serves more than one apartment in a building, the landlord is generally deemed to be in control of it and he has a duty to maintain it in a reasonably safe condition.
Most of the personal injury cases involving fire escapes have arisen as a result of injuries sustained when the plaintiff was not using the escape to avoid a fire. In such a situation, some courts have held that the tenant is, at best, a licensee to whom the landlord would not be liable for mere passive negligence. Other courts have held that when the landlord invites or consents to the use of the fire escape for other than emergency purposes, the landlord has a duty to keep the fire escape in a reasonably safe condition for this manner of use.
Thus, landlords have been held liable for negligence for injuries resulting when a fire escape was customarily used for hanging laundry, as a passageway or means of access to a tenant’s apartment, or as a vantage point from which to watch parades. There are decisions, however, which deny liability when a fire escape is customarily used for nonemergency purposes.
The third and most prevalent “fact pattern” involving premises liability occurs in so-called “slip-and-fall” cases, which are discussed in great detail in the next section.
How a Personal Injury Attorney can Help with your Premises-Related Injury
In recent years, the most frequently recurring type of premises-liability case has involved the so-called slip-and-fall (or trip-and-fall) accident in which a customer in a business establishment (usually a supermarket) slips on a foreign substance or on a slick floor surface or trips over an obstruction and is injured. The applicable principles of law are no different from those governing claims by invitees for harm caused by a condition on the premises.
In these cases, the plaintiff must show that (1) the condition was causally related to the accident; (2) the condition gave rise to an unreasonable risk of harm; (3) defendant either created the condition or knew, or should have known, of its existence in time to remedy it; and (4) defendant failed to exercise due care to protect plaintiff from the risk. The defendant may counter the plaintiff’s allegations with respect to the elements of the cause of action and may assert the affirmative defenses of contributory fault and assumption of risk.
The main ways a personal injury attorney can help you with your premises-related injury are by (1) proving each element of your case, mainly by gathering and presenting the best evidence, and (2) proving that the defendant’s defenses do not apply in your situation. The next sections will focus on the specific ways a personal injury attorney can perform these tasks in slip-and-fall or trip-and-fall cases.
Because the admissibility of specific evidence is always subject to the discretion of the trial judge, your attorney will be able to gauge the admissibility of the evidence he or she will need to present to prove your case. In these cases, the judge may balance the evidence’s probative value against possible prejudice to the defendant, undue confusion of issues, undue consumption of time involved in cumulating evidence, unfair surprise, and other policy factors.
Evidence Your Attorney Needs to Prove a Condition Existed on the Premises that Caused your Injury
The attorney in a slip-and-fall injury case must initially show that the plaintiff’s injury was caused by a condition on the premises. The mere occurrence of the accident will not satisfy this burden. The plaintiff must be able to point to the existence of some condition that made him fall. Often proof of the existence of the condition will amount to proof of causation. The next paragraphs will show some of the types of evidence your attorney may have to gather to prove this element of your case.
A personal injury attorney will generally present the plaintiff’s own testimony to create a jury question on the causal-relation issue. Because the courts will usually allow a jury to find that a substance or obstruction on the floor of a store creates an unreasonable risk of harm, the attorney will also seek to prove that the customer’s/injured party’s attention was diverted by articles on display in a store or other premises situation. In the vast majority of cases, the attorney will be able to prove factual causation by the plaintiff’s own direct testimony or by the testimony of a bystander to the effect that it was a specific foreign substance, obstacle or defect on or in the floor that caused the slip or trip. Generally, such testimony will be sufficient to create a jury question. Proof of this element of plaintiff’s case will be relatively easy when direct evidence is available.
If needed, your personal injury attorney will prepare you for what to expect in the process of giving testimony in court. The preparation will usually first take place in a comfortable setting such as the attorney’s office, or a simulated courtroom experience may be replicated. The attorney will not only help you with the questions he intends to elicit from you in court, but also the types of questions and style of interrogation to expect from the opposing side on cross-examination.
Often, however, the plaintiff may not know what caused the fall and there will have been no eyewitnesses to the accident. In this situation the plaintiff must rely upon circumstantial evidence. Your attorney will know the right kinds of evidence necessary to circumstantially prove this element. In many instances, the plaintiff’s burden will relate more to identification of a defect than to causation because the existence of a condition which could have caused a slip at a time and place concurrent with plaintiff’s fall may be sufficient to support an inference that the condition was a cause-in-fact of the fall. Thus, the jury will be permitted to make the inference even though other circumstantial evidence of causation may be slight.
The condition in question might be the slipperiness of the bare floor itself, caused by the use of slick flooring material or the application of too much wax. In such cases, plaintiff might prove that the cause of the fall was the bare floor itself by introducing evidence of the slippery nature of the floor material, previous falls due to improper application of wax, or skid marks on the floor. A plaintiff’s own testimony that he or she slipped would, of course, also be relevant.
Most importantly, the attorney will have to prove that the condition existed at the time of the accident. Testimony that the condition was found at the spot of the fall some time before or after plaintiff was injured may be admissible as circumstantial evidence unless the transitory nature of the defect or other circumstances indicates that the condition might have changed. For example, evidence that there was a hole in the floor two days before the accident in the exact spot where plaintiff claims to have tripped would be admissible to show the existence of the injury-causing defect, absent proof that the hole had been repaired in the interim. On the other hand, evidence of water on the floor twelve hours before plaintiff slipped may not be admissible because of its transitory nature, absent evidence of the recurring nature of the condition. Evidence of ice later found at the spot of an accident might be admissible to show that an icy condition existed at the time of a fall as long as the temperature of the premises remained the same.
Other types of circumstantial evidence may also be used by your attorney to establish both the existence of a hazardous condition and causation. If foreign matter cluttered the area where the plaintiff fell, evidence of the clutter should be admissible to show that plaintiff slipped on a similar substance even though plaintiff cannot precisely identify the cause of his fall. The plaintiff may also introduce evidence of the physical condition of a piece of foreign matter near the spot of his fall, such as squashed produce, to meet his burden to establish causation.
Your attorney may present evidence that other persons had fallen at or about the same time and place that plaintiff slipped. Evidence of the nature of the condition which caused the other persons to fall would be admissible on the issues of the existence of the condition and causation. However, the attorney will have to make sure that the circumstances surrounding the accidents must have been similar. For example, if plaintiff tripped on a dance floor on defendant’s premises, evidence that another person had previously tripped on a crack in the floor at the same spot would raise a jury question as to whether the same condition caused plaintiff’s fall.
Evidence that a plaintiff’s clothing was soiled with grease, wax or water immediately after the fall is admissible to show the defective condition that caused the accident if plaintiff can testify that the soil did not exist before the slip. A piece of produce or a flake of wax on the heel of plaintiff’s shoe immediately after the fall, or the presence of shoe marks at the spot of the accident would also be probative on the issue of causation.
How your Attorney will Prove your Injury was Caused by an Unreasonable Danger
After establishing cause-in-fact, a slip-and-fall attorney will prove that the condition was unreasonably dangerous and thus created an unreasonable risk of harm to those persons who might foreseeably encounter it. The plaintiff’s burden is to show that the condition brought about a reasonably foreseeable risk of harm of such gravity that a reasonably prudent person would have taken precautionary measures. If the risk of injury is so slight that no careful person would anticipate any danger, there will be no liability for any resulting injury. The question is one for the trier of fact when reasonable persons may differ. Thus, your attorney will perform the critical task of presenting evidence showing that a reasonably prudent person would have taken precautionary measures in your injury case.
To establish unreasonable danger, plaintiff must show more than the fall alone if he is to survive a motion for a directed verdict against him, since the courts invariably hold that the mere occurrence of a fall does not, in itself, support an inference that the condition was unreasonably dangerous. This issue often merges with the requirement that the plaintiff prove the existence of an injury-causing defect since the plaintiff must first show that his fall was caused by some condition on the premises. The plaintiff must also show that there was something about the condition which created an unreasonable risk that someone would slip and fall.
As a practical matter, however, if the attorney can present evidence that can prove a foreign substance or obstacle on the floor or a defect in the floor caused the fall, courts will generally allow the jury to decide whether the condition was unreasonably dangerous. This is true even when plaintiff’s own testimony furnishes proof of causal relation. The attorney will still introduce as much additional evidence as possible to show the degree of hazard involved because the greater the risk, the more onerous a burden will be imposed upon the defendant to use precautions in the exercise of due care.
In addition, some jurisdictions do not consider a condition unreasonably dangerous unless it is “hidden,” so that a reasonable person in the shoes of the plaintiff would not have discovered the condition or appreciated the danger in the exercise of care for his own safety. If your injury occurred in one of these jurisdictions, your attorney will stress the circumstances surrounding the fall such as dim lighting, attractive displays, crowded conditions, and other factors lessening the likelihood that you would be watching out for yourself. Especially helpful would be evidence to show that a reasonable proprietor, having knowledge of the condition, should have expected that an invitee might not discover or realize the danger.
The most common method used by personal injury attorneys in slip-and-fall cases for establishing unreasonable danger is to let the causative condition speak for itself. Slipperiness or otherwise potentially harmful conditions can often support inferences that their presence creates an unreasonable risk of harm to invitees. For example, the attorney generally does not have to introduce any more evidence than the fact that the plaintiff slipped on ice or snow, grease, or a piece of produce. If your attorney presents evidence like this in your injury case, the court will usually allow the jury to infer unreasonable danger from the inherent nature of the condition.
In many cases, however, the plaintiff will be unable to identify the specific substance which caused him to slip. He will only be able to testify as to its general characteristics. Nonetheless, the attorney need not prove what the substance was or what caused the slippery condition so long as the plaintiff’s general description sufficiently demonstrates the danger. Thus, a jury question as to the unreasonableness of the hazard may be presented by descriptions such as “wet . . . kind of like Coca-Cola, being kind of brownish in color,” “like heavy oil and slippery,” “oily, greasy, and scummy,” “sticky and slimy,” “hard, caked, and gooky,” or merely “greasy.” On the other hand, it may not be enough to refer to “something black,” or to state that the floor was slippery, without further elaboration, since this would not show an unreasonable propensity to cause a fall. In these cases, your attorney will seek to elicit or draw out from your memory the appropriate descriptions of the substance or condition that was unreasonably dangerous, and make sure that it is presented into evidence.
If the attorney, through the plaintiff’s testimony or other evidence, is able to precisely identify the accident-causing substance, the jury will usually be allowed to decide whether or not the substance is unreasonably dangerous. Thus, juries have considered the degree of danger inherent in gummed tape, a mixture of sawdust, wood chips and fine gravel, wet algae, a piece of pizza, a “sucker” stick, and obstacles such as a shoe-fitting stool, a protruding pipe, and screws. On the other hand, courts have refused to permit juries to weigh the dangers of pebbles on a driveway, a seeing-eye dog, and a shopping cart because the likelihood of harm in these circumstances was deemed to be too slight.
An injured slip-and-fall plaintiff may have a greater burden of proof when a fall results from a structural defect in the floor, rather than from a foreign substance. A jury finding of unreasonable danger may be permitted if the cause of the fall is a hole or depression, smooth, worn stairs, or unevenness. When the plaintiff falls because of a normal change in the floor level, however, the condition itself cannot support an inference that it created an unreasonable risk of harm. Proper investigation by your attorney will be necessary to see if your situation fits any of these descriptions.
The attorney may have to introduce additional evidence of the surrounding circumstances. For example, if two floor levels were of the same color, creating an illusion or “blending effect” of only one level, a jury question may be presented on the issue of whether a fall might have been reasonably foreseeable. Other circumstances which might combine with a change in floor level to justify a determination of unreasonable danger include inadequate lighting, obstructed vision, an attention-diverting display, an abnormal change in level, an unexpected change in level, and defects or foreign substances on steps. If you encountered a change in level several times prior to the mishap that caused your injury, you might, however, be found contributorily negligent and have your award reduced accordingly.
If the plaintiff complains that the flooring material itself was unsafe for use, his burden of proof may be particularly hard to overcome. Commonly used materials, such as linoleum, terrazzo and vinyl, are generally held not to be unreasonably dangerous as a matter of law. In these cases, your attorney will have to present evidence that the floor was unusually slippery. He may even have to resort to expert testimony to prove that the risk created by the flooring material was unreasonable under the circumstances present at the time of the accident. He may also establish unreasonable danger by introducing evidence that the floor was wet or unusually slippery due to improper applications of wax or oil. Recent cases generally allow the trier of fact to find unreasonable danger from the presence of water on a tile floor without requiring direct testimony to the effect that the water made the floor unusually slippery.
One special circumstance involving potentially dangerous conditions on the premises occurs when customers track water onto the floor as they come in out of the rain. Usually, the condition created is not unreasonably dangerous since entrants should expect and be alert for slippery floors on rainy days. Courts in some states have continued to apply this rule in “rainy day” cases, denying recovery on the ground that business invitors have no duty to protect patrons against hazards they should expect to face during pluvial conditions.
If your injury occurred because wax made a floor unusually slippery, your attorney may introduce evidence of improper application, over-polishing, or the use of an improper wax. Though the waxing of a floor, in and of itself, is generally not deemed to create an unreasonable danger, an opposite conclusion may be reached in cases involving the waxing or buffing of certain types of flooring material, such as terrazzo.
If a plaintiff slips on a carpet or mat, the mere presence of the floor covering is not sufficient, in itself, to justify a finding of unreasonable danger. The attorney will also have to show some defect, such as a depression, the inappropriateness of placing the cover at the particular spot where plaintiff fell, the wetness of the cover, or a ridge in the carpeting due to wear or improper installation.
Any facts or circumstances surrounding a particular defect and indicating an increased likelihood of harm bear heavily upon the unreasonableness of the danger. Your attorney will introduce such facts or circumstances into evidence whenever possible.
The most commonly utilized surrounding circumstance is evidence of similar slips or trips caused by the same condition. Such occurrences are relevant and admissible because they show the injury-causing potential of the condition. Your attorney may establish unreasonable danger by introducing proof of similar falls caused by the condition in question even if they occurred after your injury-causing mishap.
The only qualification to the admissibility of this evidence is the absence of a substantial change of condition in the interim. The circumstances surrounding the falls must be similar but they need not be identical. Thus, if you tripped and fell over a raised metal strip on defendant’s stairway, evidence that others had tripped over other metal strips on the same stairway before and after your accident would be admissible to show the hazard arising from the condition which caused harm to you. However, when the unreasonable risk is obvious, instances of other falls caused by the same condition may be excluded on the ground that the evidence is unnecessarily cumulative. Further, the absence of complaints concerning a longstanding condition may be admissible to negate evidence of the existence of an unreasonable danger.
Another factor helpful to an attorney in demonstrating unreasonable risk is the frequency of use of the particular premises where a plaintiff slipped and fell. If, for example, the attorney can prove that a given store had an unusually high volume of traffic, this may cause a particular defect to be more dangerous because of the greater likelihood of injury.
Finally, the actions or statements of a defendant or his employees are highly probative in showing that a condition is unreasonably dangerous. Proper discovery and investigation by your attorney can root out this kind of evidence. For example, evidence that the defendant’s employees had placed mats at the doorway of the premises on previous rainy days would tend to show that the floors were dangerous when wet. Likewise, evidence that the defendant had repaired raised metal strips on his stairways prior to the plaintiff’s trip over a similar obstacle would tend to show that unless the strips were repaired, they were unreasonably dangerous.
Your attorney may also introduce statements by the defendant concerning the danger created by the condition in question as admissions of an adverse party and may elicit statements of the defendant’s employees by direct testimony. In these situations, your attorney is invaluable in knowing when to call such adverse witnesses in court.
How your Attorney Proves that the Slip-and-Fall Defendant Knew/Should Have Known of the Dangerous Condition that Caused your Injury
Establishing the third element necessary to prove a slip-and-fall case (the defendant knew or should have known of a dangerous condition) is probably the most difficult element for your attorney to prove in your slip-and-fall case. The difficulties in proving either the defendant’s creation or knowledge of the risk stem from the absence, in most cases, of direct evidence showing how the particular substance or obstruction reached the floor or how long it had been there. Your attorney will therefore conduct an appropriate investigation, sometimes many months before the trial, into the specific circumstances surrounding your injury. If appropriate direct evidence is not available, then the attorney will often resort to various circumstantial proofs to establish that it was more probable than not that the defendant created the condition or had actual or constructive notice of it.
Even though a plaintiff can show that he slipped, fell and was injured because of an unreasonably dangerous condition on the premises, he must still prove that the defendant had actual or constructive knowledge of the condition or had created it. This element is usually the most difficult for plaintiffs to prove, at least when transitory defects are involved, since there is often little or no direct evidence tending to show how the particular instrumentality reached the floor or how long it had remained there. Thus, attorneys must again resort to circumstantial evidence.
Actual knowledge of the defective condition requires proof of direct exposure of the condition to defendant’s senses or express communication of the condition to defendant. Constructive knowledge means that defendant, in the exercise of reasonable care, should have discovered the condition prior to plaintiff’s fall. Similar types of circumstantial evidence can be used to prove actual or constructive notice. However, such testimony, in general, more readily supports inferences of constructive knowledge.
Factors that your attorney may present for jury consideration in deciding whether the defendant should have discovered a dangerous condition include the size and nature of the premises, the volume of traffic, the number of employees on duty, the nature and location of the danger, and the length of time the danger existed.
In the best-case scenario, your premises-related injury will have been caused when the defendant or his employees affirmatively created the dangerous condition. In this case your attorney would not need to introduce evidence that the defendant had actual or constructive knowledge of the hazard. Under such circumstances, the courts presume notice.
Your attorney may establish the defendant’s responsibility by introducing evidence that defendant’s employee had washed and mopped the floor immediately prior to plaintiff’s fall, or that an employee of defendant had made an inadequate attempt to remove the hazardous condition. The attorney may also rely upon circumstantial evidence that the defendant created the condition. It is not necessary for a plaintiff to rule out all other possible causes. He must merely show that, more probably than not, the defendant or his employees were responsible.
The type of foreign substance upon which a plaintiff slipped may support an inference that the defendant created the condition. For example, when water gathers on the floor of a store on a clear day, the court may permit an inference that its presence was due to the act or omission of an employee of the defendant as long as there is evidence that no other customers were carrying water into the store. Similarly, if a customer trips over an exposed telephone cord, the nature of the obstruction gives rise to the inference that the defendant was responsible. Hence, actual or constructive notice need not be proven. On the other hand, if a plaintiff trips over a case of beer next to the door of a liquor store, no inference may be drawn that the proprietor was responsible because it was more probable than not that another customer left it there while fetching his car.
The condition of the substance on the floor may also be probative in determining whether the defendant created the hazard. For example, an inference arises that an employee of the defendant was responsible for water “dirt-streaked” and “swept-through,” or for snow partially shoveled and left in a hazardous condition. Such conditions are not natural to the foreign substances involved and it is not likely that another customer created them.
Your attorney may look into the work procedures used by the defendant in the area where the foreign substance was present, which may also support an inference that an employee of the defendant was responsible. In one reported case the plaintiff slipped and fell on a piece of gummed tape at the entrance to the defendant’s store. The usual practice was for merchandise to be unloaded in front of the store and gummed tape was used for packaging merchandise. The court held that the issue of the defendant’s responsibility was properly left to the jury even though there had been no deliveries on the day of the accident. Similar inferences might arise when a plaintiff slips on water if the defendant’s employees were working in the general area at a task requiring the use of water; or when a plaintiff slips on a piece of produce at the end of a check-out counter if defendant’s employees had used empty produce boxes at that very spot to pack groceries.
Finally, the area of the premises where the accident occurred may also raise an inference that only an employee of the defendant could have created the condition. When an invitee is lawfully present in an area which is not generally open to the public but is used exclusively by the proprietor or his employees, and the invitee slips and is injured, an inference arises that the defendant is responsible for the condition. This situation sometimes arises when a customer uses a bathroom in an establishment that the proprietor has for the benefit of employees only.
Similarly, if the condition is in an area open to the general public, the nature of the substance found in that particular area may create a likelihood that an employee of the defendant dropped it there. Thus, the question was left to the jury when a plaintiff, who slipped and fell on asparagus on the dance floor in defendant’s restaurant, offered proof that the defendant’s waiters had previously crossed the area while serving food.
If you were injured in a self-service retail operation, special rules that your personal injury attorney will know may affect your case. The requirement of actual or constructive knowledge can leave a plaintiff vulnerable to the argument that the accident still might have happened even if the defendant had exercised reasonable care in policing the premises. In the context of modern self-service retail operations, where customers handle merchandise and enjoy every kind of opportunity to create hazards for other customers, this approach can place heavy burdens of proof on injured invitees.
As previously discussed, if a dangerous condition is transitory and does not result from affirmative action by the occupier, courts have traditionally denied liability unless the injured entrant can prove that the defendant knew, or should have known, of the hazard and failed to use due care to eliminate it. However, if the attorney can establish that any affirmative aspect of the defendant’s mode of operation gives rise to unreasonable risks of harm, the plaintiff should be able to recover even if the injury resulted from a transitory condition created by another customer. In such a case the negligent conduct would be the aspect of the operation which created the risk, rather than the failure to eliminate the risk created by the customer. The best way to demonstrate these principles in action is to look at the facts of cases involving self-service retail operations from various jurisdictions. Your personal injury attorney will know the law of your jurisdiction as it applies to these situations.
The plaintiff in one Oklahoma case slipped and fell on some strawberries in the defendant’s store. A display of strawberries, heaped high in uncovered containers, was located just inside the front door, at a distance from the spot where the plaintiff was injured. The plaintiff, however, did not establish how the strawberries fell on the floor. The Supreme Court of Oklahoma said that “When a shopper has shown that circumstances were such as to create the reasonable probability that a dangerous condition (e.g. uncovered, heaped strawberries) would occur, the invitee need not also prove that the business proprietor had notice of the specific hazard (spilled strawberries) in order to show the proprietor breached his duty of due care to the invitee.” The defendant’s negligence was in the manner in which the strawberries were displayed, not the failure to clean up the spilled strawberries.
In cases where the defendant’s mode of operation is not negligent in and of itself but nonetheless creates a foreseeable risk of harm, courts in a variety of jurisdictions have developed two approaches to permit injured plaintiffs to recover.
In a New Jersey case the plaintiff slipped and fell on a string bean in the defendant’s grocery store. The beans were unpackaged and sold self-service-style, from open bins. The plaintiff offered no evidence to show how the bean in question had reached the floor or how long it had been there before the accident. The trial court dismissed the case on the ground that plaintiff had failed to prove that one of the defendant’s employees had dropped the bean or that the defendant had actual or constructive notice of the condition. However, the Supreme Court of New Jersey reversed, pointing out that when produce is sold from open bins on a self-service basis, there is a likelihood that some of it will be dropped to the floor. The court stated that “If the operator chooses to sell in this way, he must do what is reasonably necessary to protect the customer from the risk of injury that his mode of operation is likely to generate; and this whether the risk arises from the act of his employee or of someone else he invites to the premises. The operator’s vigilance must be commensurate with that risk.” This case demonstrates how modern merchandising practices in large supermarkets make it extremely difficult for the slip-and-fall plaintiff to satisfy the traditional element of constructive knowledge.
A Louisiana court noted that a self-service store increases the danger to its customers by enticing them to focus attention on items being displayed rather than on where they are walking; furthermore, a plaintiff is often in no position to prove that the foreign object is on the floor because of the defendant’s negligence.
In a Washington case, a can of paint fell on the plaintiff’s foot as she was shopping in the defendant’s self-service shop. The court held that where the operating procedures of any store are such that unreasonably dangerous conditions are continuous or reasonably foreseeable, there is no need to prove actual or constructive notice of such conditions in order to establish liability for injuries caused by them. Thus, the defendant would be charged with knowledge of the hazard whether or not he knew, should have known, or had reason to know of it.
A recurring dangerous condition may also require the self-service operator to use preventative means to mitigate or eliminate the hazard by design changes. For example, where a self-service drink machine provides the recurring danger of spilled ice or drinks, the premises defendant may be required to install non-skid matting in order to meet the requirement of maintaining the premises in a reasonably safe condition. Failure to take such steps could help your personal injury attorney bolster your premises injury case.
In summary, premises liability injury cases are extremely fact-intensive. Your personal injury attorney from the Law Offices of David I. Fuchs will be adept at honing in on the facts needed to prove your case to win a fair judgment for you and will understand the laws that pertain to your jurisdiction.