Premises Liability Cases

• Author: Leonard Bucklin
• Pages: 675-720

61-1 (Rev. 5, 7/09)

61. Premises Liability Cases

§61.1 The View of the Premises

In premises liability cases, attorneys need to

get out of the office and view the premises.

A premises liability case is, by definition, a

case in which the plaintiff claims that the

nature of the premises is an essential part of a

tort. A view of the premises is needed by the

attorneys involved, both plaintiff and defen-

dant to: (1) fully understand the nuances,

defects, and importance of testimony of wit-

nesses in describing the actual situation; and (2)

to determine additional claims and defenses

regarding the premises, and to be awakened to

extra lines of factual investigation that might be

helpful. Likewise, the best cross-preparation

defending against what the adversary claims

about the premises comes to the attorney’s

mind only after the attorney has walked the

premises and has seen them as the plaintiff and

defendant saw them.

The viewing should be done as soon as pos-

sible. The defense has an advantage. The defen-

dant attorney does not have to be fully pre-

pared for a view of the premises. He/she can

do the initial view with a defendant represen-

tative who can answer questions regarding

such things as safety features, maintenance,

repairs, and the differences between the prem-

ises on the date of the accident and the date of

the inspection. Moreover, defense counsel can

go back and inspect the premises again, and

again, and again.

In contrast, if the accident site is not open to

the public, plaintiff’s counsel has to assume

they will only get one inspection of the prem-

ises. Discovery rules give a party an absolute

right to inspect the premises of an adversary —

once. Plaintiff’s attempt to enter the defen-

dant’s property for a second view of the prem-

ises (by counsel or by liability experts or by

photographers) will be met by a defense objec-

tion of harassment and expense. Courts tend to

agree with the defense arguments objecting to

a second view of the same premises.

WWARNING. The plaintiff’s attorney

will have the chance to see the premises

without permission only if the accident

site is a public place, e.g., the entrance to

a shopping mall. If the premises are pri-

vate but accessible, (e.g., a railroad switch

yard into which one can walk openly in

spite of warning signs to the contrary, a

hospital corridor, or a company’s truck-

ing dock area into which one can drive

one’s own car), be prepared for claims of

trespass and motions to suppress use of

anything found or photographed by you

or your expert. How you will be treated

by the trial court depends so much on the

temperament of the trial court that you

had best not attempt securing any evi-

dence by trespass. And, of course, ethics

rules prevent an attorney or his/her

investigator using lies or subterfuge to

enter premises.

To make maximum use of what might be the

one view of the premises by counsel and

his/her photographers and experts, plaintiffs

need to wait to inspect the premises until after

each of the following have occurred.

TThe nature of the defense has been

established.

TPlaintiff has gathered by discovery all

the documents and tangible items the

defendant had for the purchase,

installation, operation, repair, mainte-

nance, inspections, and safety of the

premises and premises items involved

in the litigation.

TPlaintiff has retained the primary lia-

bility expert, who has become familiar

with the case, the nature of the claims

and defenses, and who, at the least, has

reviewed the discovered documents

and tangible items.

TPlaintiff has arranged for their liability

experts, together with any needed

photographer or surveyor, to be avail-

able at the same time that plaintiff’s

counsel views the premises.

§61.2 Special “First Steps”

Considerations in Fire Cases

Fires don’t just happen, they are caused.

Somebody, or something, caused it accidentally

or on purpose. When a premises fire is first

reported to the lawyer, the lawyer has to ensure

that existing evidence of who, or what, caused

the fire is not lost or destroyed. There are certain

“first steps” needed to be done quickly in fire

cases, and some of them differ from the normal

handling of other litigation, e.g, a motor vehicle

accident or a contract dispute.

Here is the additional “first steps” checklist

you should use when a client tells you they are

involved with a fire causing the loss of prop-

erty or personal injury.

1. Get an investigator, or someone to rep-

resent your interests, to the scene fast.

Preferably this person should be some-

one experienced in fire claims and

investigation, but remember that inex-

perienced representation on the scene

today is better than no representation at

all. Tomorrow gives you a chance to get

someone else to take over for you at the

scene, but today does not repeat itself.

2. Secure the scene of the fire. The

authenticity and evidence value of fire

scenes deteriorate rapidly after the fire

is extinguished. Curious persons and

well- meaning owners tramping on the

scene or moving objects may cause loss

of critical evidence. Fires don’t just

happen, they are caused. Somebody, or

something, caused the fire accidentally

or on purpose. If your client’s loss was

caused by a defective product, defec-

tive construction, or by the acts of a

third party, you can sue to recover the

loss. The question is whether you can

win. You need evidence gathering

ASAP, but your first priority is secur-

ing the scene until your expert investi-

gator has finished working the scene.

• Don’t move anything before your

expert moves it (if you are using an

expert).

• Keep other people from moving

anything before your expert moves

it (if you are using an expert).

3. If it’s over a $100,000 loss, and you

expect to make or defend a claim, then

phone ASAP and get a good expert

witness. You cannot recover or defend

unless you can prove the claim or

defense in court. Decide if you need:

• A fire origin expert witness (to

determine where the origin of the

fire was, and then what item at that

point was the ignition cause of

fire); and/or

• If you have a suspicio n regarding a

type of product or construction

being the cause of the fire (e.g, elec-

trical wiring), then consider retain-

ing early the appropriate expert

witness engineer or other special-

ist to prove or disprove “fault” of

the product or premises item.

4. Look. Observe. Photo and record the

scene. Your investigator can do it until

any expert you have hired arrives on

the scene. Then have the expert do the

observation and photos.

5. Consider the issue of evidence spolia-

tion. Failure to continue to secure the

scene after your expert has examined

but before potential adverse parties

have had a chance to view the evi-

dence in place at the scene can lead to

charges of spoliation and an adverse

jury instruction.

6. Get a complete statement from the

premises owner regarding what he/she

knows about the likely claim of cause.

7. As soon as you can, get (orally without

recording it) from the head of the fire

department personnel at the scene

his/her theory of the cause of the fire.

Although this initial determination by

§61.2 BUILDING TRIAL NOTEBOOKS 61-2

fire personnel is frequently wrong, and

often differs from the official report done

after later official investigation, you may

get a valuable lead to additional avenues

of claim or defense evidence that should

be immediately explored.

8. Now that you have done the above,

make a preliminary determination of

all possible causes. Determine the most

likely causes that will be claimed, by

anyone, in the future. Always include

in your thinking the possibilities of

claims by you or someone else of:

a. Your client’s (or insured’s) acci-

dental acts,

b. Someone else’s accidental acts,

c. A construction defect,

d. A product defect,

e. A failure to adequately maintain or

inspect premises or premises items,

f. Your client’s (or insured’s) arson,

and

g. Someone else’s arson.

Then stop to think if your investigation

has skipped evidence you may need to

prove, or disprove, such theories if

advanced by you or others. This men-

tal exercise will help you from losing

evidence you may later need.

9. Now - switch gears - start thinking

about any personal injuries involved in

the fire. Get your usual handling of

such cases in your office started.

10. Switch gears again - start thinking

about the client’s (or insured’s) loss

and the amount to be paid to the prop-

erty owner for his/her property dam-

age or for other losses (e.g., loss of use).

Get a general overview of the dam-

ages, then get a list of the specifics from

the owner of the property or other par-

ties suffering loss because of the fire.

11. Decide where the disputes on values

are likely to be.

12. If an item is over a $200,000 loss, a dis-

pute on value is likely to be significant

and getting the right value awarded is

worth the price of an independent

appraiser. Call and get a damage

expert who can testify effectively in

court on market value or replacement

value regarding the type of property

involved. Remember that in court the

value estimate testimony of an insur-

ance adjustor or other investigator tied

to a party does not fare well in court. If

you are going to prove it in court, you

will need an independent appraiser

looking at property before it is razed,

repaired, or thrown out as part of a

clean-up of the premises.

Now, at this point, having done the “first

steps,” you can catch your breath and start to

handle the premises fire litigation case as most

other tort cases are handled.

§61.3 A Paradigm Checklist for the

Complaint in a Premises

Liability Case

The shared element of all premises cases is

that they all involve land or buildings or activi-

ties on or in them. A premises liability case is, by

definition, a case in which the plaintiff claims

that control of, or operations on, real estate (land

or buildings on land) is an essential part of a tort

or the defendant’s liability. Likewise, a premises

contract case is, by definition, a business contract

case in which the contract involves real estate.

However, premises liability cases encom-

pass a great variety of claims and fact situations

concerning the land or buildings or activities

on or in them. Premises cases include injuries

arising from causes from A to Z. The causes can

be asbestos exposure, building security

devices, chemical leakage, dog bites, electric

shock, fires, ground littered with unexpected

objects, hydrogen explosion in a methanol

plant, inadequate lighting, junction box fail-

ures—you get the idea—and so on, ad infinitum

down to zoning violations.

Yet, in spite of the variety of fact situations

and legal claims in premises liability cases, it still

is possible to design a paradigm checklist for the

busy plaintiff’s attorney to use when he or she is

drafting the complaint. It happens that the most

common premises liability case of a litigation

attorney—the so-called “fall-down,” “slip and

fall” or “trip and fall” accident—can serve as the

model, or paradigm, for the checklist.

The fall-down case exemplifies the range of

possible defendants to consider in all premises

cases. The plaintiff can point liability claims

61-3 PREMISES LIABILITY CASES §61.3

(Rev. 5, 7/09)