I frequently get phone calls and emails concerning individuals who were injured as a result of a trip and fall or a slip and fall on someone’s property or at a place of business. Typical injuries range from a concussion to a broken leg or a dislocated shoulder. Some injuries are quite significant, requiring surgical repair and many months of rehabilitation. However, just because someone was injured as a result of a fall, does not necessarily mean that he or she has a viable claim for negligence. In my experience, these types of claims are most always contested and vigorously defended.
Premises liability – i.e. the liability of the landowner – is a fairly nuanced area of the law. The purpose of this article is not to delve into every aspect of premises liability (I’ll save some for later) but, rather, to give you a general overview of what is needed to bring (and prove) a viable claim.
Generally speaking, a slip and fall claim is premised on the negligence of the landowner. To prevail on a negligence action, a plaintiff must show (1) the existence of a duty, (2) a breach of that duty, and (3) an injury proximately resulting from the breach. In slip and fall claims, the applicable duty is determined by the relationship between the plaintiff and landowner: business invitee, licensee, or trespasser. “Invitees” are persons who rightfully come upon the premises of another by invitation, express or implied, for some purpose which is beneficial to the owner (e.g. customer at a store.) A “licensee” is a person who enters another’s property by permission or acquiescence, for his own pleasure or benefit, and not by invitation (e.g. police officer or firefighter.) A “trespasser” is someone who is upon the premises without consent (e.g. burglar.)
Most, if not all, inquires I receive are from individuals who would be classified as an invitee. The duty owed to an invitee is one of ordinary care to maintain the premises in a reasonably safe condition and to warn of hidden dangers. This duty also requires a landowner to inspect the premises to discover possible dangerous conditions of which he or she does not know, and take reasonable precaution to protect the invitee from dangers which are foreseeable from the arrangement or use.
In order to prove a landowner breached this duty, the plaintiff must prove any of the following: (1) the landowner, through its officers, employees or agents, was responsible for the hazard (e.g. employee caused a spill); (2) the landowner had actual knowledge of the hazard and neglected to promptly remove it or give adequate notice of its presence (e.g. was notified about spill but did not clean it up); or (3) the hazard existed for a sufficient length of time to reasonably justify the inference that the failure to remove it or warn against it was attributable to a lack of ordinary care (e.g. spill was on floor for sufficient period of time that they should have known about it.)
In most cases, the landowner will claim the hazard was either (1) not unreasonably dangerous or (2) “open and obvious” in an effort to extinguish any duty to plaintiff. Under the “open and obvious” doctrine, the landowner owes no duty to persons entering those premises regarding dangers that are open and obvious. The rationale underlying this doctrine is that the open and obvious nature of the hazard itself serves as a warning. Thus, the landowner may reasonably expect that persons entering the premises will discover those dangers and take appropriate measures to protect themselves. However, the question of whether a danger is open and obvious is an objective one, and courts must consider attendant circumstances (i.e. lighting, degree of attention, prior exposure, etc.) as to whether a reasonable person would deem the danger open and obvious.
If you have been injured as a result of a slip and fall or trip and fall, please contact Scott for a no cost, no obligation consultation and case evaluation.