Premises Liability: What Does That Mean?
By Jessica N. Marshall
I see what a business has to worry about when it comes to litigation.
A business has to worry about slip-and-fall and trip and fall cases. In some situations, a business has to worry about a negligent security case. Even if a business survives a lawsuit on the merits, the business most likely spent tens of thousands of dollars to get the case to go away. A motion for summary judgment is not cheap.
If a business has proper liability insurance that covers premise liability, then the insurance carrier will provide an attorney to fight the lawsuit. A lot of civil defense attorneys are employed by insurance companies. There is inside insurance counsel (who tend to have short and sweet depositions) and outside insurance counsel (who tend to have long drawn out depositions). Every business should carry proper liability insurance because not all lawsuits are avoidable.
A normal business person is going to get served with a lawsuit and not understand why they are responsible for an ex patron’s medical bills when “they should have “watched where they were going”. But let’s face it, who goes to a shopping center, business, grocery store or restaurant, looking for tripping hazards on the floor? The law protects against “open and obvious” conditions. If something can easily be seen and avoided, the business is not responsible. A person cannot file a fraudulent lawsuit without consequences. Frivolous lawsuits can be thrown out and the business person can go after costs. But the plaintiff is most likely judgment proof. Meaning you will never collect a dime. They don’t have assets and/or barely making the bills.
But a lot of the time, the law is on the plaintiff’s side. Getting a lawsuit dismissed is not as easy as it seems. In California, to get a lawsuit dismissed, the defendant must file a demurrer (California’s motion to dismiss).
A court will only grant a demurrer if the facts of the complaint do not draw a reasonable inference of a civil injury that the court can order a defendant to pay or grant an injunction. In demurrers and motions to strike, the complaint is taken as 100 percent true. Courts generally grant leave to amend the complaint if the plaintiff can demonstrate an ability to fix the deeply flawed complaint.
A demurrer follows the four corners rule unless facts or evidence can be judicially noticed. Which is basically law, common knowledge to a jurisdiction, and any court preceding?
Sometimes, a civil defense attorney will have to prevail on a motion for summary judgment, after the defendant answered the complaint (which is a court fee of 370 dollars in California), undergo the discovery process and then file and serve a motion for summary judgment. The motion for summary judgment is heavily litigated. I’ve been in court waiting for my case to get called and have to listen for a hearing regarding a motion for summary judgment. It ends up being 30 minutes of oral argument. The judge then “affirms the tentative” meaning, he or she states the ruling they published online the day before is the ruling of the court.
A business can easily pay 10 grand just for its attorneys to draft, file, serve and argue the motion for summary judgment. Of course answering the complaint, as well as conducting and responding to discovery cost tens of thousands of dollars too.
That is if your case prevails on the merits. But if there are enough disputed facts, it will go to trial and a jury will get to decide. It’s generally cheaper to settle than to litigate. Most businesses pay to make the lawsuit go away.
A business has to make sure it’s in compliance with local, state, and federal laws. It also needs to know if it is vulnerable to a lawsuit or not. This article focuses on premises liability lawsuits and how to avoid them. After all the crux of negligence are preventable accidents.
To avoid a premises liability lawsuit, a business has to make sure there are no dangerous conditions on its property. And if there are dangerous conditions on the property, the business must adequately warn of that danger. A dangerous condition is something that is highly likely to cause injury on another person and it is not open and obvious. There are particular things that will make a premises have a dangerous condition on the property.
When a business has hard or concrete flooring, severe injuries and medical bills can result when a patron trips and falls or slips and falls. If a business could have prevented that accident, the business is responsible for that patron’s medical bills as well as pain and suffering and lost wages. There are things that make a business vulnerable. Such as:
- Ground surfaces that are slippery when wet.
There are consulting companies with engineers that can test premises to see if the floor would be unreasonably slippery under wet and dry conditions. Personally I think it would be cheaper to hire an expert before opening your property to public commerce. I’ve seen premises liability experts be retained for 3 grand. However, if you choose not to consult a premise liability expert, there is also observing it under normal conditions. You can also use your own judgment on whether a surface would be unreasonably slippery under wet or dry conditions. A patron can spill water or soda, and leave the mess behind. Rain can also create a tripping hazard on a floor. Rain is foreseeable. A business has to make sure its customers won’t slip and fall because of the rain.
- Places that have food, especially where people eat and don’t necessarily clean up after themselves.
When a business has this danger, it needs to have staff that will constantly inspect and clean the premises of any food debris. It’s best if employees keep logs of inspections and clean ups to show a record of “exercising due care”. Grocery stores are required to have such logs, but most places of business are not. But it’s a good idea to show how a business owner is keeping its property safe for public commerce.
- Tiny Steps – Meaning steps under four inches, especially if there is nothing that calls attention to the step and it blends with the rest of walkway or path.
Tiny steps are the worse. Unless it’s painted a bright color, has a handrail or a sign warn warning about a tiny step, it’s so easy to trip over this. If a business serves alcohol, it’s just asking for a lawsuit. If business is conducted after sunset, it is also asking for a lawsuit. If both factors, apply, oh my! There is no need for a tiny step. Make it a ramp or a big step.
- A premises that is drawn to third party criminals.
Generally a business is not responsible for the acts of criminals that are not a part of the business, such as a patron. However, if the business knows about the criminal activity its premises tends to attract, it has to take reasonable measures to protect its patrons from this criminal activity. If a bar experiences fights and assaults from patrons, then one day a person walked into the bar, and ends up assaulted, but there was no bouncer or door person to stop the assault, then the bar could be liable. It’s a good idea for bars to have bouncer and security on its premise because alcohol has a propensity for violent behavior. If a business is in an area of high crime and it knows about the crime, it might have to have security to protect its patrons from criminals. Or at least have adequate outdoor lighting. A business will have to ask if these measures are cheaper than fighting a lawsuit. The less a business does to protect patrons from criminal harm on their property, the more it will open itself to a lawsuit. Of course a business in a safe neighborhood that is not serving alcohol has to worry less about security or security measures. But it is always best to figure out and execute minimum security measures.
- Miscellaneous Tripping Hazards
Miscellaneous tripping hazards are too numerous to list and deserves to be in its own category. A miscellaneous tripping hazard is anything that can cause a person of common intelligence to trip that isn’t listed above. Such as a tripping hazard that is out of site unless the person did a ridiculous inspection of the property or was not warned about the tripping hazard beforehand. It can be a palate crate, left in the corner of a store, where a person won’t see it because of how low it is. Most shoppers are looking at prices and merchandise, not the floor. It can be a random product, an employee or patron dropped in the middle of the floor that cannot be easy to see such as a glass lens from a pair of glasses. I’ve seen a dad with his baby, and the dad walks away when the baby vomits all over the hard floor. I went and got an employee to get it cleaned up, saying the mess could cause a slip and fall. I later let the employee know I work at a personal injury law firm and that I saved his store a lot of money.
If any of the above factors apply to your business, it is best you evaluate the measures that need to be taken to avoid accidents on your property.
When opening a business or having construction done on the business it is best to speak to an attorney to see if your property is open to lawsuits. An experienced premise liability attorney can be an invaluable consultant. Not all accidents can be prevented. But negligence is about the accidents that could have been easily prevented.