Articles Posted in Premises Liability

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In a recently decided case, a plaintiff sued a grocery store for injuries after she slipped and fell on a piece of watermelon at the store. A store employee had been handing out watermelon samples close to where the woman had slipped. The woman alleged that the grocery store was negligent because the floor was wet from the watermelon samples and posed a danger to customers. She claimed that the store either knew or should have known about the danger because offering watermelon samples in a busy section of the store created a danger in and of itself. But the plaintiff did not have evidence as to how long the piece of watermelon had been on the floor before she slipped on it.

Watermelon SlicesThe court found that the case failed because of the woman’s lack of knowledge as to the length of time the watermelon had been on the floor. The woman had to show that the danger posed was due to the store’s negligent conduct. The court explained that normally a plaintiff must demonstrate a store was negligent either because it knew that the danger existed or because it should have known about the danger but failed to do anything about it.

The court found that the woman could not do that in this case because there was no evidence that the store knew a piece of watermelon had dropped on the ground, or that it should have known it was there due to the length of time it had been on the floor. In addition, while the woman argued that the court should have found that the business’ decision to pass out watermelon by itself created a danger, the court rejected the argument. As a result, since she had no evidence as to the length of time the dangerous condition that caused her to fall existed, her case failed.

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Earlier last month, a state appellate court issued an interesting opinion dealing with governmental immunity as it applies to slip-and-fall cases occurring on government land. In the case, Kozak v. City of Lincoln Park, the court discussed the “highway exception” to the general rule that government agencies are not liable for injuries caused on their land or by their employees.

Leaves on SidewalkThe Facts of the Case

Mrs. Kozak was crossing the street in Lincoln Park when she tripped on a raised portion of the road. According to the court’s written opinion, there were two concrete slabs that met in the middle of the street. Where those two slabs met, there was about a three-inch height differential between the two slabs because they did not line up perfectly.

Kozak filed a personal injury lawsuit against the City of Lincoln Park, claiming that the City was liable for her injuries because it failed to fix the dangerous condition where the two concrete slabs met. In response to Kozak’s claims, the City asserted its governmental immunity, claiming that the road was reasonably safe. In support of its position, the City had the Director of Public Services testify that in his opinion, the roadway was safe.

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Earlier this month, the Rhode Island Supreme Court issued an opinion of interest to anyone considering filing a premises liability case against a landowner. In the case, Roy v. State, the court discussed how a state’s recreational use statute may act to prevent an injured party from seeking compensation for their injuries if the injuries occurred on the land of another party that had been opened up for free use by the general public.

Lake SceneThe Facts of the Case

Roy was paralyzed after he dove into a pond in a state-owned park. The park had “no swimming” signs posted around the pond, but the swimming prohibition was not strictly enforced. In fact, it seems that there would even be lifeguards on duty some days to ensure that those who did decide to swim were doing so safely. In addition to the “no swimming” signs, there were also “no diving” signs, and from the evidence at trial, this prohibition was enforced.

On the day in question, Roy dove into the pond after quickly inspecting the water level from above. He explained that it looked deep enough to dive into and also that he didn’t enter the water at a perpendicular angle, but instead at a more gradual angle through what he called a shallow dive. In any event, Roy struck his head on the bottom of the lake and broke his neck. He suffered permanent paralysis as a result. He then filed a premises liability lawsuit against the state, as the owner and operator of the park, alleging that the state was negligent in the maintenance of the park.

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The highest civil appellate court in the state of West Virginia recently made a ruling that will void an award of over $55,000 that was given to an injured plaintiff by the jury after a premises liability trial. The high court ruled that the plaintiff never made an adequate showing that the defendant’s alleged negligence was the legal cause of the plaintiff’s injuries, and without such evidence the plaintiff could not receive any damages as a matter of law. Based on the recent opinion, the plaintiff will be unable to collect any compensation for the injuries he suffered when a fence he was leaning on broke, sending him falling down a hill and causing injuries.

Wooden FencePlaintiff Is Injured at a Park that Was Operated by the Defendant

The plaintiff in the case of Wheeling Park Commission v. Datolli was a man who was injured while he was visiting a West Virginia public park that was operated by the defendant. According to the facts discussed in the appellate opinion, the plaintiff needed to rest while he was at the park, and he decided to lean against a fence atop a small hill because there were no benches in the area for him to have a seat. After briefly inspecting the split-rail fence and noticing no defects, the plaintiff leaned on the top rail of the fence, which became dislodged from the fence post and resulted in the plaintiff falling down the hill, seriously injuring his shoulder.

Plaintiff Files a Premises Liability Case Against the Park Commission

The plaintiff later filed a premises liability lawsuit against the park commission, seeking damages for his medical expenses, lost wages, and pain and suffering related to the accident. At trial, the plaintiff called the operations manager of the park as a witness, who testified that the fence was over 20 years old and could be subject to decay, although the Park Commission could not show that they had repaired or maintained the fence in question. After the trial, the plaintiff was awarded damages for the medical expenses and lost wages that he incurred as a result of the accident, although his claim for pain and suffering damages was denied by the jury.

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Earlier this month, a woman who broke her ankle after slipping and falling on ice outside a Marriott hotel had her case reversed based on an error the trial judge made while instructing the jury. In the case, Alcala v. Marriott International, the court held that the jury’s general verdict finding the defendant negligent had to be reversed because two of the four theories of liability provided to the jury were based on improper instructions. As a result, the plaintiff will need to try the case all over again.

Snowy WalkwayAlcala v. Marriott International:  The Facts

Alcala was on a business trip staying at a Marriott hotel. During her stay, as she was exiting the hotel, she slipped on a sidewalk outside one of the hotel’s main exits. As a result of her fall, she sustained a broken ankle. She then filed a premises liability lawsuit against Marriott, claiming the company was negligent.

The plaintiff claimed that Marriott was negligent in several ways. First, its employees were not properly trained to handle icy walkways. Second, the company was negligent for failing to inspect the sidewalk. Third, the company was negligent for failing to safely maintain the sidewalk. Finally, the company was negligent for failing to use slip-resistant materials when constructing the sidewalk.

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Earlier this month, the Supreme Court of North Dakota issued an opinion in a premises liability case brought by a woman who was seriously injured when she fell to the ground after stepping on a rotten board at a county fairground. In the case, Woody v. Pembina County Annual Fair & Exhibition Association, the court determined that the fairground was not liable because they were entitled to immunity under the state’s recreational use statute.

fireworks-1550276What Is a Recreational Use Statute?

In general, owners of land have a duty to those whom they invite onto their property to keep the property safe and free of dangerous conditions that may result in serious injury or death. However, there are a few exceptions to this general rule, one of which being when the owner of the land opens up the land for free use to the general public for recreational purposes.

In Florida, the recreational use statute is designed to “encourage persons to make land, water areas, and park areas available to the public for outdoor recreational purposes by limiting their liability.” To do this, the law states that a land owner who opens up his or her land to the general public for recreational use “owes no duty of care to keep that area safe for entry or use by others, or to give warning to persons entering or going on that area of any hazardous conditions, structures, or activities on the area.”

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Florida premises liability law requires that the owners and managers of businesses maintain their establishments in a reasonably safe condition. If this does not happen, a person who is injured on the property may bring a lawsuit seeking financial compensation for medical bills, lost wages, and other damages.

When someone brings suit to recover damages for injuries sustained in an accident arising from allegedly unsafe conditions on business property, some in the legal community refer to it as a “slip and fall” case. In Florida, there are several statutory requirements that must be met in order for such a case to be successful. The District Court of Appeal for the Fourth District of Florida recently ruled that a particular woman’s case failed under statutory law.

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Could it be that a false sense of security is worse than no security at all? Two siblings who moved into a “gated community” surrounded by water, walls, and fences in 2004 assumed that they were safe from murderers and thieves. After all, the apartment complex claimed to provide reasonable lighting, locks, and peepholes, and the apartments had alarm systems. Unfortunately, the siblings were far from safe.

According to the personal representative’s appellate brief in the case of Sanders v. ERP Operating Limited Partnership, the siblings were murdered in 2005 while living at the Gatehouse on the Greens apartment complex located in Plantation, Florida. The complex consisted of over 300 apartments located in a dozen buildings. In all, it was home to approximately 1,000 residents.

Proceedings in the Trial Court

The lawsuit filed against the owner of the complex by the siblings’ personal representative alleged that the siblings’ death was caused by the complex’s negligent failure to maintain the premises in a reasonably safe condition. Specifically, the personal representative claimed that the complex did not maintain the front gate, failed to have adequate security, did not prevent dangerous persons from gaining access to the premises, and failed to protect and warn residents of dangerous conditions and criminal acts.

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boat2If you or a loved one has been injured due to another party’s negligence, you may be surprised to know that, in most cases arising under Florida law, you do not have a legal right to sue the responsible party’s insurance company directly. This is true even if you were contacted soon after the accident by a representative of the insurance company and have never even spoken directly with the person or business that caused your injury.

The rationale for the “nonjoinder statute,” as it is called by the courts, is that a jury should not be told whether a defendant has liability insurance because an award of damages would be more likely if the jury knows that an insurance company (rather than the negligent party) would actually be writing the check at the end of the day. In the recent case of Starr Indemnity & Liability Co. v. Morris, the plaintiff attempted to find a way around this general rule by asserting a breach of contract claim, rather than a negligence action, against the insurance company under a medical payment provision.
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Waiting the brideIf you are asked to sign a release before engaging in a particular activity, you need to ask yourself whether you are truly willing to waive, in advance, any claims you may have against the party asking you to sign the release. Unfortunately, many people sign such documents without giving a second thought to their actual significance under the law. This can be a huge mistake. The case of Sanislo v. Give Kids the World, Inc. illustrates the point.

The defendant was a non-profit organization that provided seriously ill children and their families with vacations at a resort village. The plaintiffs were parents who applied for a vacation for their child. During the request process, the parents signed a form that purported to release the defendant from “any liability for any potential cause of action.” The defendant approved the parents’ request. When the family arrived at the resort (located in Kissimmee, Florida), the plaintiffs again signed a liability release form. Neither release specifically said that the plaintiffs were waiving any negligence claims that might arise.

During their time at the defendant’s village, the family participated in a wagon ride. The wagon had a lift in the back for the benefit of persons confined to wheelchairs. While on a ride in the wagon, the family stepped onto the lift to pose for a picture. The lift collapsed, and the mother injured her hip and back. The plaintiffs filed suit in the Circuit Court for Osceola County, asserting a negligence claim against the organization. In response, the organization asserted that it was entitled to an affirmative defense due to the release signed by the plaintiffs. Both parties filed motions for summary judgment on the issue of the release. The trial court granted the plaintiffs’ motion, and the matter proceeded to trial. The jury found in favor of the plaintiffs and awarded them damages. Continue reading →

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