Premises Liability Cases

• Author: Larry Booth/Roger Booth
• Pages: 179-214

5-1 (Rev. 2, 11/13)

Chapter 5

PREMISES LIABILITY CASES

I. ELEMENTS OF CAUSE OF ACTION AND DEFENSES

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

II. INTERVIEW AND INVESTIGATION

§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

III. PLEADINGS

§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

IV. PLAINTIFF’S WRITTEN DISCOVERY

§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

V. DEPOSITIONS

§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

VI. SETTLEMENT STRATEGIES

§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

VII. MOTIONS IN LIMINE

§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

VIII. TRIAL PREPARATION

§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)

I. ELEMENTS OF CAUSE OF

ACTION AND DEFENSES

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

Status

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.

Exceptions:

• Some jurisdictions recognize an exception

for the adult trespasser who trespasses habit-

ually with the possessor’s knowledge and

acquiescence.

• 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.