Evaluating the Premises Liability Case
By: Thomas D. Penfield
November 5, 2009
Premises cases can arise in many contexts. Here we will focus on slip/trip and fall or inadequate security. Premises cases may also arise in many other contexts as well, e.g., dog bite, construction site, etc., and many of these same concepts will apply. Premises cases tend to be shunned by plaintiff lawyers. We do a lot of them because other people don't want to. I always tell clients that while they may have heard that 90-95% of civil cases settle, premises cases are the types of cases that are in the 5-10% that don't settle. In addition to the usual battle over liability, it usually has a colorable defense of comparative fault.
First, let's address the most common premises case, the Slip (or Trip) and Fall Case. Or, as Plaintiff attorneys prefer to call them, the dangerous premises case. Then, we will turn to its difficult sibling, the inadequate security case.
Slip/Trip and Fall Cases: Real problems for Real People
What is the nature of the problem? There are about 11 million falls per year, resulting in about 10-16,000 deaths, depending upon whether you look to the Center for Disease Control, the National Safety Council or Bureau of Labor statistics. No matter whose statistics you use, it's huge. For people 65 or older, falls are the leading cause of injury related death. More than one third of adults 65 or older fall each year in the U.S.
A physical therapist recently told me studies show that of those people whose fall leads to a hospital admission, 50% will never live alone again. Of the cohort who will need assisted living, 50% will be dead within one year. About 60-70% of falls are due to environmental hazards, e.g. poor design, maintenance, or contamination.
Anecdotally, I have only had two male clients in slip and fall cases, the rest have been women. The Center for Disease Control reports that women are 67% more likely than men to have a nonfatal fall injury (CDC 2005). Falls are the leading cause of non-fatal injuries for all children ages 0 to 19.
With statistics like this, what could go wrong for the plaintiff?
There is a bias inherent in premises cases. Conventional wisdom holds that the elderly and overweight people fall all of the time and all on their own. So those cases are challenging just because of the bias present. But the conventional wisdom also believes that the property owner is an insurer of the safety of individuals on their property. It is interesting that both perceptions can exist simultaneously. 2 2
I take the same approach as the experts do. Safety experts say that:
1. The first priority is to design safety into the system. Always look for this aspect,
because if it is there, the case is more difficult to prosecute.
2. If safety cannot be designed in, then the second choice is to remove people from the
hazard, e.g. the proprietor creates a barrier or guides the public around it.
3. If that cannot be done, then the proprietor needs to guard the public from the harm,
warn them of the hazard, and train its employees to respond to the hazard.
The third choice is the easiest to criticize.
Casey, Gerry, Schenk, Francavilla, Blatt, & Penfield, LLP
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