PREMISES LIABILITY

There are several accidents and events that may fall under the legal theory of premises liability, or the closely related theory of landowner negligence. These may include:

• Slip and fall accidents
• Dog bite/animal attacks
• Swimming pool accidents
• School and playground accidents
• Daycare accidents
• Amusement park accidents
• Elevator and escalator accidents
• Exposure to toxic substances
• Accidents that result from defective property conditions
• Accidents that result from inadequate property maintenance
• Assaults and injuries that result from negligent security

In order to determine if you have a viable premises liability claim, you must first prove that the landowner owed you a duty of reasonable care to ensure your safety. But the owner’s duty of care differs depending on the type of visitor you were when you got hurt on the property.

There are three general types of property visitors:

• Invitees: An invitee is someone who has explicit or implied permission to enter the property, usually for the financial benefit of the owner or caretaker. Examples of individuals who fall into this category include customers of commercial establishments, tenants who rent or lease a residential or commercial property, and subcontractors who are paid to do work on the property. The highest duty of care is owed to invitees. Landowners are supposed to take reasonable steps to inspect the property and keep it free of hazardous conditions, and to adequately warn property guests of their existence.
• Licensees: A licensee is still someone with implied or explicit permission to be on the property, but they generally enter it for their own purposes. Examples of licensees may include unsolicited door-to-door salespeople, mail carriers, neighbors, and social guests. Landowners owe a slightly lower duty of care to licensees. They are still required to take reasonable steps to keep the property safe and free of known hazards, but they are not necessarily required to regularly inspect the property for dangers that were not previously known.
• Trespassers: A trespasser is someone who has not been invited on the property and has no legal right to enter it. Landowners owe very little duty of care to trespassers – their only requirement is to refrain from willful or wanton misconduct or entrapment that causes them harm. If you were trespassing when you were injured on someone else’s property, you will be facing an uphill battle should you decide to bring a premises liability action

If you have sufficient evidence to support your premises liability or landowner negligence claim and the ability to successfully argue your case, you may be entitled to compensation. This may include not only direct monetary losses such as medical expenses and loss of present and future earnings, but also for non-economic losses such as pain and suffering, psychological distress, loss of enjoyment, and in the most severe cases, permanent disability.

To be successful with a premises liability or landowner negligence claim in Alabama, you must overcome the state’s “contributory negligence” legal standard. Contributory negligence means that if an injured party “contributed” in any way to the underlying accident (even 1%), they can be barred from recovering damages.

The landowner and their insurer will almost certainly attempt to use this defendant-friendly standard to try to pin some of the blame on you for your accident. Some possible defenses they may use include:

• The defendant was not aware of the hazardous condition that caused the injury;
• The hazardous condition was “open and obvious” to a reasonable person;
• The plaintiff was not watching where they were going (e.g., you were looking down at your phone or taking a selfie) when he/she was injured;
• The plaintiff was in an area of the property where visitors are not allowed, or they do not normally go.

Although property owners have an obligation to protect invited visitors on their property, individuals are also responsible for taking reasonable steps to keep themselves safe. This is the basis of the open and obvious defense. It means that if an obstacle is “open and obvious to a reasonable person”, it might not be the property owner’s fault if someone fails to notice it.

This defense is applied in a variety of ways. Consider, for example, an outdoor garden with large potted plants throughout the property. A visitor to the gardens strikes their calf on a stone planter hard enough to suffer a fracture. It comes out that they were looking at their phone when they ran into the planter. It could be argued that the planters are open and obvious, and beyond that, they are to be expected in an outdoor garden.

However, this varies in different settings. Consider a retail store. There is an uneven spot on the floor bridged by a small step. Someone doesn’t notice it because they were looking at clothing racks as they passed by. In this case, it might be reasonable for a consumer to be looking at a store’s products while walking. Additionally, an unexpected step in the middle of a store would be hard for anyone to predict. In this situation, the open and obvious defense may not work.

To successfully address these arguments, it is important to take proactive steps immediately after the accident. Obtain as much documentation of the event as possible. Take multiple photos from various angles to show how the accident happened, and if you are physically unable to take pictures, have someone else do it for you.

Obtain statements and contact information from any individuals nearby that may have witnessed the accident. Seek immediate medical attention from a qualified professional, so your injuries are properly treated. And finally, get in touch with a seasoned personal injury attorney as soon as is convenient. The sooner you get an attorney involved, the better your chances of recovering compensation for your injuries.