Still Waiting on Your Premises Liability Settlement? TriMark Can Help.
Premises liability is an enormous area of law and it is the basis for millions of personal injury lawsuits each year. And just to keep things interesting, there are, literally, millions of different circumstances under which premise liability can be applicable.
Common types of premises liability cases include:
Commercial and retail property liability
Construction site accidents
Dog bites, dog attacks and dog maulings
Nursing home lawsuits; abuse, neglect, assault, etc.
Slipping, tripping and falling accidents
Homeowner liability accidents
Essentially, a claim of premise liability charges that a condition existed or should have been known by the property owner to have existed, and/or was created by the actions, inactions or negligence of the property owner that caused serious harm, injury or death to another person or persons, and that said harm, injury or death could have reasonably been avoided, had the property owner exercised a more appropriate level of care.
Generally speaking, any time a person is hurt or killed while on or in someone else’s real property (real estate, buildings, facility, work site, etc.), premise liability is going to come up in settlement discussions about liability insurance because, like Willie Sutton is credited with saying, “that’s where the money is.”
Premises liability covers a staggering array of personal injury lawsuits from slip and fall cases to drowning, electrocutions, dog bites and other animal attacks, burn injuries, crush injuries, dangerous or toxic substances and injuries and permanent disabilities ranging from simple bruising and soft tissue injuries to sprains, tendon and ligament damage and cracked, dislocated or broken bones, neck injuries, back injuries, spinal cord injuries, traumatic brain injuries or other catastrophic injuries or permanent disabilities and even death.
An Explanation of Premises Liability Law
Premises liability lawsuits can be complicated. Because this type of liability cannot arise without personal injury, it is natural for many premises liability lawsuits to involve personal injury claims – and this is precisely what makes it difficult, aside from the different rules, laws, and regulations that are dependent on each state.
A property owner or tenant can be held liable when a visitor of any kind, either an invitee, licensee, and even in some cases, a trespasser, retains an injury on the said property as long as the property is found negligent. Property owners or occupants have a legal duty to ensure safety on their property and when this duty is disregarded, and a visitor gets into an accident or receives an injury while on the property, then the property owner can be held liable.
There are certain exceptions to the rules of premises liability which will differ from state to state. However, many states exercise the doctrine of comparative fault when it comes to premises liability. Comparative fault basically states that compensation to be received by the plaintiff will be reduced. The factor that will determine how much is to be reduced is based on the contributing fault of the plaintiff to cause the injury. The percentage of fault that the plaintiff has is equivalent to the percentage that will be deducted from the total amount of compensation. It is important to state that while property owners or occupants have a duty to keep the property as a safe environment; visitors also have a duty to exercise care and caution while on the property of others.
Unfortunately, some states also exercise contributory negligence. Contributory negligence does not grant any compensation whatsoever to the plaintiff as long as the said party has a share of culpability or liability in causing the injury or accident on the property, no matter how small that fault may be.
Premises Liability Lawsuits
Premises liability lawsuits makes property owners responsible for any kind of damage that results from an injury that occurred on the owner’s property. All property owners are required to make reasonable efforts to sustain a safe environment for visitors such as repairs or warning signs, across all states in the U.S. Evidently, there are various rules and laws that would govern premises liability lawsuits depending on the state.
Majority of the states in the country follow the doctrine of comparative fault when it comes to premises liability cases. Under comparative fault, the injured person who is either partially or fully responsible for the cause of the injury is not eligible for recovering damages that resulted in a dangerous property condition. Visitors, like property owners, also have the responsibility to exercise caution and care in keeping themselves safe within other properties. In the extent of the visitor’s failure to use reasonable care, the compensation for damages may be reduced by the visitor’s percentage of fault.
A good explanation for this is when an injured person is liable for 20 percent of the injury while the property owner is responsible for the remaining 80 percent. If the total amount of damages is $100,000, then the victim will only be able to recover $80,000 from the property owner. Basically, the property owner only pays for damages equivalent to the percentage of his fault. However, in states that use the principle of contributory negligence, the plaintiff or the injured visitor will not be able to recover for damages if the person is found to have even a negligible amount of fault. As long as the plaintiff has contributed some fault to the cause of the injury, he or she will be unable to receive compensation for damages.
Prior to filing lawsuits under the claim of premises liability, plaintiffs must ensure the following in order for premises liability to apply to the defendant: (1) the defendant must possess the property; (2) the plaintiff must be an invitee or a licensee, and in some states, trespassers may also be protected under the premises liability law (California Supreme Court in 1968, Rowland v. Christian); (3) negligence through violation of the duty of care, or some other wrongful act; and (4) the defendant knew about the unsafe conditions of the premises and failed to alert visitors or tenants.
Plaintiffs are able to claim compensation for damages such as medical expenses, pain and suffering, medical distress, physical impairment, and loss of past and future wages.
Background on Premises Liability
Premises liability arises when an owner fails to keep his or her property safe for visitors. Basically speaking, if a person has an accident or obtains an injury on another person’s property, then the property owner may be held culpable for such incidents. The most common occurrences that may lead to premises liability lawsuits include animal and dog bites or injuries, slip and fall incidents, assault due to negligent security, dangerous property, negligent or inadequate security, swimming pool injuries, inadequate maintenance, children on property, retail store liability, and restaurant liability.
In situations of apartments, commercial properties and the like, a landlord is usually not liable for injuries sustained by a tenant’s visitor. This is because the tenant is assumed to have control of the conditions in the property. Exceptions apply for latent defects, which are hidden and hazardous conditions that already exist when the tenant assumes possession of the property. Another exception to the rule is when a landlord shoulders the repairs for a tenant – the repairs, however, must be done in a manner that is non-negligent. Naturally, most premises liability lawsuits also involve personal injury claims since the premises liability suit would not exist if injuries weren’t sustained on the plaintiff’s part.
Condition of the Property and Actions of the Parties
Courts in some states concentrate on the state of the property and on the actions of both the visitor and the owner. On a general basis, property owners and occupants have a duty to keep the property reasonably safe and make repairs for all kinds of visitors other than trespassers. In determining the duty, factors such as the circumstances which the visitor came on the property, the nature of the property, the reasonableness of the owner or occupant’s actions to warn or make repairs, and the ability to predict injuries are considered.
As such, it is the responsibility of the property owner or occupant to inspect the property on a regular basis to find out which dangerous conditions are present in order to make repairs or put warnings to prevent lawful visitors from injury. Owners or tenants that have failed to live up to this responsibility may be liable for visitor injuries that arise in the property.
Status of the Visitor
Due to various state laws, rules regarding those who are eligible for recovering damages under premises liability vary depending on the state. Some states determine liability based on the status of the visitor of the property. The status of the visitor is usually identified as an invitee, licensee, or a trespasser.
Invitees are described as someone who is invited on the property for commercial purposes, like a mall customer. Licensees or social guests are on the property through an invitation or permission from the property owner or occupant. These two types of visitor statuses, invitations are implied promises that the property is safe for the visitors to dwell in. Some states imply that property owners owe a duty of care, depending on the visitor status (invitee or licensee). However, other states that identify with these distinctions owe the highest duty of care to both types.
Many states enforce no kind of damage recovery for trespassers who are injured on the property but do not have any right to be there. In cases like this, the property owner or occupant must take measures to refrain from intentionally hurting trespassers. There are cases, however, when owners are required to give feasible warnings of non-obvious dangers to trespassers when the owner is aware of the likelihood of trespassers. Child trespassers are usually an exception to this rule and are given a higher duty of care.
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