Premises Liability Cases

AuthorLarry Booth/Roger Booth
5-1 (Rev. 2, 11/13)
Chapter 5
A. Theory of Liability
§5:01 In General
§5:02 Duty Based on Plaintiff’s Status
§5:03 Modern Trend: General Reasonable Care Standard
§5:04 Recreational Venues and Recreational Uses
§5:05 Breach
B. Defendants and Defenses
§5:10 Proper Defendant
§5:11 Public Entity Liability
§5:12 Common Defenses
§5:13 Suing Contractors—Statutes of Repose
C. Specific Situations
§5:20 Overview of Factual Scenarios
§5:21 Slip and Fall Issues
§5:22 Defective Premises Issues: The So-Called “Open and Obvious” Defense
§5:23 Construction Cases Compared
§5:30 Interviewing the Plaintiff
§5:31 Early Investigation of the Scene
§5:32 Coefficient of Friction Examination by Expert
§5:33 Other Experts
§5:34 Statements From Eyewitnesses
§5:35 Statements From Employees of the Premises and Neighbors
§5:36 Statements From Emergency Personnel and Persons Who Rendered Aid
§5:37 Violations of Building Codes, OSHA Regulations and Similar Rules
§5:50 Form: Complaint; Premises Liability
§5:51 Form: Answer With Affirmative Defenses; Premises Liability
§5:52 Form: Complaint in Intervention for Recovery of Workers’ Compensation Benefits
Personal Injury Handbook 5-2
§5:60 General Information About Plaintiff’s Written Discovery
§5:61 Form: Interrogatories to Defendant; Premises Liability
§5:62 Form: Requests to Produce to Defendant; Premises Liability
§5:70 Whom to Depose
§5:71 Preparation for Depositions of Defendant’s Employees
§5:72 Deposition Checklist: Employee or Manager in Slip and Fall Case
§5:73 Preparation for Plaintiff’s Deposition
§5:74 Preparation for Deposition of Defense Experts
§5:75 Form: Deposition Questions—Defense Expert in Slip and Fall Case
§5:76 Preparation for Deposition of Plaintiff’s Experts
§5:90 Plan on Going to Trial
§5:91 Keep Your Demand on the Low Side
§5:92 Be Patient
§5:93 Form: Plaintiff’s Mediation Brief; Premises Liability
§5:100 General Information About Motions in Limine
§5:101 Form: Plaintiff’s Motion in Limine to Exclude Expert Testimony
§5:102 Other Sample Motions in Limine
§5:110 Demonstrative Evidence: Show and Tell Is Everything
§5:111 Form: Joint Exhibits List
§5:112 Witnesses: Critical Fellow Travelers
§5:113 Jury Selection Checklist
§5:114 Voir Dire Questions
§5:115 Form: Defendant’s Trial Brief—Premises Liability
§5:116 Form: Plaintiffs’ Trial Brief Re: Open and Obvious Defense
§5:117 Form: Plaintiffs’ Trial Brief Re: Violation of OSHA Regulations as
Negligence Per Se
§5:118 Opening Statement
§5:119 Closing and Rebuttal Argument
§5:120 Form: Special Verdict; Premises Liability
5-3 Premises Liability Cases §5:04
(Rev. 2, 11/13)
A. Theory of Liability
§5:01 In General
Premises liability is a specialized form of negli-
gence. Thus, in most premises-liability cases, you will
need to establish the typical elements of a negligence
claim: duty, breach, causation and damages.
The law of premises liability may differ consider-
ably from state to state. Always review both the case
law and the statutes in your own jurisdiction.
§5:02 Duty Based on Plaintiff’s
In some jurisdictions, the plaintiff’s status as an
invitee, licensee, or trespasser determines the legal
duty owed by the defendant.
Invitee. A plaintiff is regarded as an invitee if he or
she is on the premises to mutually benefit himself or
herself and the possessor. For example, customers of
a business are invitees. A possessor of land owes the
highest duty of care to an invitee. In many jurisdictions,
this duty imposes an affirmative obligation on the pos-
sessor to warn of dangers and inspect for hazards.
Licensee. A licensee has permission to enter
property but does not enter to confer any economic
benefit on the possessor. An example is a social guest
at a private home. The possessor’s duty of care to the
licensee is less than the duty to an invitee. Generally,
the possessor has a duty not to willfully injure the
licensee, as well as a duty to warn of hidden dangers
of which the possessor has knowledge.
Trespasser. The trespasser is on the premises with-
out express or implied permission. The trespasser
assumes the risks of all hazards that he finds there. If
the trespasser is injured on the property, he will likely
be barred from recovering for his injury. The possessor
owes no legal duty to take precautions for the safety of
a trespasser who is not expected to be on the premises.
Some jurisdictions recognize an exception
for the adult trespasser who trespasses habit-
ually with the possessor’s knowledge and
Some jurisdictions recognize an exception for
the “discovered trespasser.” In these jurisdic-
tions, the possessor owes a duty of reasonable
care once the trespasser is discovered.
Under the “attractive nuisance doctrine,”
applicable in some jurisdictions, if a child
was lured onto the premises by some condi-
tion existing on the property, the child is not
considered a trespasser but is a type of invi-
tee, and the landowner has a duty to protect
the child from dangers he or she might not
otherwise appreciate.
§5:03 Modern Trend: General
Reasonable Care Standard
In many states, courts no longer rely on tradi-
tional classifications of the plaintiff’s status. Instead,
courts substitute a general reasonable-care standard
that applies to all people but trespassers (e.g., Kansas,
Maine, Massachusetts, Minnesota, Nebraska, North
Carolina, Wisconsin and Wyoming). See Mellon Mort-
gage Co. v. Holder, 5 S.W.3d 654, 671 (Tex. 1999)
(citing cases from these jurisdictions). In some states,
the reasonable-care standard extends even to trespassers
(e.g., Alaska, California, Colorado, Hawaii, Louisiana,
Nevada, New Hampshire and New York). Id. at 669.
State statutes have also become increasingly impor-
tant over the years, as legislatures have taken steps to
amend or change the judge-made law in many situations.
§5:04 Recreational Venues and
Recreational Uses
In many jurisdictions, special rules define the
scope of the duty of owners of places like amusement
parks, swimming pools, and athletic stadiums. Some-
times a plaintiff is deemed to have assumed the risk of
injuries when he or she enters these premises.
Many, if not most, states have enacted recre-
ational use statutes that limit the liability of private
landowners for injuries suffered by persons who
enter the property for recreational purposes unless the
landowner’s conduct is malicious or the landowner
charges admission. See, e.g., Ark. Stat. §50-1104;
Cal. Code Civ. Proc. §846; Mich. Comp. L. §300.201;
N.C. Gen. Stat. §38A-2. Governmental tort immunity
statutes often provide similar immunities for recre-
ational accidents on public lands.

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