By Frederick Schenk, as published in The Legal Examiner
Sadly, the issue of premises liability has been in the news of late. From the horrific incident where an alligator dragged a 2-year-old Nebraska boy into the water at a Disney Orlando resort to the much-talked about encounter between a gorilla and a 3-year-old boy at the Cincinnati Zoo, the focus has been on who is responsible and what should have been done to prevent the two tragic cases.
While the cases have sparked a blame game in the media and online, they serve to direct attention to what the law says about premises liability and what business, hotel and resort owner/operators – as well as the underlying property owner – can do to protect themselves should an accident occur at their business, home or facility.
The two recent incidents, while attention getting, are the extreme – one resulting in the death of a child, the other the death of animal who was viewed as a threat to a child. Other cases may not be so headline grabbing – a slip-and-fall entering a shop resulting in permanent injury, a broken arm sustained from falling in a play gym, or a head injury from a hotel guest slipping on a wet marble floor.
A number of factors come into play that will ultimately determine liability in these cases. Each premises liability case ultimately results in immediate and continuing charges for doctor, hospital and physical therapy bills along with lost wages and even lost earning power. And we can’t forget pain and suffering or other physical or mental distress that a plaintiff may allege.
In each of the recent incidents, one could argue either way. The parents shouldn’t have let the child go in the water at Disney World since there were “No swimming” signs posted; the counter argument: Disney, which reportedly knew of the alligators’ presence, should have had specific warning signs or even a fence. In Cincinnati, the mother could be responsible for letting her youngster get out of her view, enabling him to enter the gorilla’s enclosure – or the zoo should have had a more secure area with stronger barriers.
If, or when, they take a case to court, the verdict will turn on some key definitions starting with whether the condition of the property is deemed to be dangerous. That determination, in itself, will hinge on a number of points, among them:
Reasonable care. As a business owner, you must be able to prove that you took reasonable care to keep the property safe and to protect your clients or customers, or in the case of a hotel or attraction, your guests. That goes for both the matter of signage and fencing that would make it evident that an area was unsafe. Perhaps an area is under construction or maybe it has recently been cleaned and the floors are slippery. Reevaluate premises regularly, always take that extra measure and never throw caution to the wind. When in doubt, put up a sign or close off the area.
Prior knowledge. A case could also hinge on whether the property/business/hotel owner was monitoring the conditions of the property and its environs and knew that a danger – like alligators or a broken fence – existed and made efforts to fix the situation. Or did they ignore it, as some have speculated Disney might have done in terms of their knowledge of the alligators’ presence. The court will want to know if they could have done something to prevent the incident.
Playing into this is determination will be whether the site was maintained in a natural state – let’s say a wilderness camp or a lakefront property. Or, on the other hand, did the owner bring in wildlife or know that the land was no longer in its native state? Again, what they knew or did to prevent injury is critical to the outcome of a case.
Invitees/licensees: Also important is the status of the injured person. In the Orlando and Cincinnati cases, the parties were guests or “invitees,” i.e., someone “invited” because of the nature of the business to use the property, which indicates the owners have taken care to assure their safety. Another category is a “licensee,” one who is on the site for his or her own purpose or a social occasion, someone visiting with the owners’ permission. There’s also the instance of the “trespasser,” someone who does not have permission or rights to be on a property. The term can also apply to a customer in a store or a diner at a restaurant.
The guest’s responsibility. Another key consideration is the visitor’s responsibility to protect and care for him or herself. Did the client or guest venture out of adequately marked areas or take some risk that put them in jeopardy regardless of the property owner’s efforts to maintain a safe site?
Negligence. Underlying all of these points is the matter of negligence: Did the property owner fail to take care to protect a reasonable party from injury? It is a term that implies accidental occurrence, i.e., carelessness rather than intentional error. To establish negligence in a premises liability action, an individual must prove: 1) a duty of care owed by the property owner to the individual; 2) the owner’s breach of that duty by a negligent act; and 3) damage resulting from the breach of duty.
Premises liability laws vary widely from state to state – and as previously discussed, claims run the gamut in terms of scope and seriousness. In any event, attorneys should keep abreast of the evolving laws in their respective states and business owners should remain aware of obvious dangers – or potential ones — and always be on the lookout for the hidden ones.
Frederick Schenk is a partner with Casey Gerry Schenk Francavilla Blatt & Penfield LLP, a San Diego-based plaintiffs’ law firm.