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Premises Liability: Determining Who Assumes Risk

by David Faltz on January 9, 2014

Personal Injury Attorney

Premises liability cases often seem fairly clear-cut.

If a landlord fails to fix a loose handrail in one of their homes and a tenant falls after leaning on the rail, the landlord assumes the risk because it was his or her responsibility to maintain the safety of the house. If a holiday shopper is injured on a mall escalator that is malfunctioning because it is past its inspection due date, the building owner must assume responsibility and compensate the injured party for things like medical bills and loss of income.

However, there are some situations when it is not always immediately clear who should assume the risk.One prime example of this is a recent ski resort liability case.

Risk on the Slopes

Idaho’s Snow Flake resort recently faced a premises liability lawsuit for negligence after a skier broke his leg on one of their slopes. One of the main questions that this lawsuit brought up was who should assume the risk at a place like a ski resort, where people are knowingly choosing to participate in a physical activity that could potentially result in an injury.

In Idaho, skiers typically assume the risk and legal responsibility for injuries that result from skiing—but that doesn’t necessarily mean that resorts are always free of fault.

There is evidence that the man filing the lawsuit against the Snow Flake resort was skiing out of control at the time that he fell and broke his leg, which might suggest that the accident was his fault. However, that’s not the end of the story. The man fell on a bare spot of the slope, and there is evidence that the resort knew about this bare spot,but that they failed to mark it. Ski resorts are legally responsible for maintaining their runs and clearly marking any potential hazards.

Businesses have a duty to keep their premises in a “reasonably safe” condition, and Snow Flake failed to do that because they did not mark or block off a dangerous area on a slope where they knew that people would be skiing.

We should not always assume that someone injured at a recreational site brought that injury upon themselves by participating in a risky activity. The owners of that recreational site need to be held to a set safety standard to ensure that the people at that site aren’t unknowingly put in danger.

Businesses Have a Duty to Warn Us about Potential Hazards

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It’s important that businesses regularly inspect their premises and identify any potential hazards. Business and building owners should not just assume that visitors to their premises are going to be able to identify potential risks, especially when those potential hazards are not clearly visible.

This is also the issue that has come up in a recent premises liability case in Madison County, Illinois. Patricia Fuentes is currently suing a realty and management group for negligence after she broke her ankle on a vacant property. Fuentes claims that she was driving through town when she noticed that a house that had been vacant for two years had a “For Sale” sign in front of it, leading her to investigate.

There were no signs warning prospective buyers not to walk around the property, so Fuentes says she walked over to the patio at the rear of the house. Unfortunately, the patio contained a cellar door that was the same color as andlevel with the ground, and when Fuentes accidentally stepped on it, the door gave way and she fell about six feet into the cellar.

This case is somewhat unusual because Fuentes was not a resident of the property or a visitor to a typical business site. However, because the house was currently owned by an asset management group and had a “For Sale” sign, it can be considered as a building that potential buyers had a right to visit. If the asset management group and the realty company they were working with were putting the house up for sale, it was their responsibility to make sure that the house was safe for visitors. Or they should at least have put up warning signs about potential risks until they could address the problem.

Due to the lack of any warning and the instability of the cellar door, Fuentes should not be held at fault for the accident.

Knowing When a Business Is at Fault for an Accident

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Some people who are injured on a business premise might blame themselves for not taking more care, or might even think that the accident was something that could not have been prevented. However, it’s important to look closely at the circumstances of the incident to determine whether a business may be partially or fully at fault. If the accident were caused by negligence, businesses need to be held responsible so that the same kind of accident doesn’t happen to anyone else again in the future.

In my home state of Florida, businesses are legally responsible for accidents on their property if they “had actual or constructive knowledge of the dangerous condition and should have taken immediate action to remedy it”. “Constructive knowledge” can also mean that the dangerous condition existed for a long enough amount of time that a responsible business owner should have known about it, or that the situation had occurred before and was foreseeable.

Everyone should be aware of their own rights and the responsibilities of property owners—and should seek out the advice of a legal authority like a personal injury attorney if they are unsure of who should assume responsibility in any type of accident. Premises liability and other areas of personal injury law can get complex, but we need to work to determine who assumes therisk in order to keep other people out of dangerous situations.Sometimes you may be too close to the situation to objectively assess whether or not someone else was at fault. Taking steps to seek help isn’t just about justice for you; it’s also about keeping others safe.

About the Author:
Andrew Winston is a partner at the personal injury law firm of Lawlor Winston White & Murphy. He has been recognized for excellence in the representation of injured clients by admission to the Million Dollar Advocates Forum, is AV Rated by the Martindale-Hubbell Law Directory, and was recently voted by his peers as a Florida “SuperLawyer”—an honor reserved for the top 5% of lawyers in the state—and to Florida Trend’s “Legal Elite.”

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