I slipped in a store and was hurt pretty badly. What do I need to know and how can I get compensation?
We’ve all heard of (or known) someone who slipped and fell in a store or tripped over something in someone’s lawn and suffered an injury. Both of these things could be cause for a lawsuit. There are two areas of law covering such injuries and both are related to negligence. It’s important to know the difference as each area has different elements that you have to prove in order to win your case.
The difference between the two is “ongoing activity”. In a regular negligence case, there has to be an ongoing, negligent act. For example, you’re putting a new roof on your home and a case of shingles slides off the roof and hits someone, causing them to be hurt. This, per Wal-Mart Stores, Inc. v. Garza, is an ongoing activity and would be a regular negligence case.
In premises liability cases, which are harder to prove than regular negligence cases, the injury must be caused by a “condition on the land.” In Keetch v. Kroger Co., the store sprayed some plants in the store and someone fell half an hour later. The Court found that the “act” of spraying wasn’t the cause of the injury. Instead, it was the “condition” created by the spraying that caused the injury.
If you are suing under premises liability, you used to have to prove these four elements:
- The landowner knew or should have known there was a condition present that could cause an injury. Note: this depends on what type of visitor to the land was injured, which is covered in the “Duty to Invitees” article.
- The condition created an unreasonable risk of harm.
- The owner didn’t take reasonable action to lower or get rid of the risk.
- The owner’s lack of action caused your injuries.
Now, per Austin v. Kroger, things are a bit different. The old rule was that that landowner didn’t owe a duty to make sure people knew about the dangerous conditions, especially if they were open and obvious; in other words, conditions that were clearly visible and/or that you knew about.
The new rule puts the duty of warning you about the danger back on the landowner. There is now a “duty to make safe or warn against any concealed, unreasonably dangerous conditions of which the landowner is, or reasonably should be, aware but the invitee* is not.”
*Invitee: someone who comes onto the land with the owner’s knowledge and for reasons that benefit both the invitee and the owner. You, the injured party, are the invitee.
Now, you have to prove the following:
- An unreasonably dangerous condition exists;
- The owner knew or should have known about it;
- The condition was not open and obvious, but was concealed; and
- You didn’t know about the condition or the risk of harm.
Austin v. Kroger also created two exceptions to the new rule: the necessary-use and criminal-activity exceptions. These exceptions keep the duty to warn of danger and reduce the risk of injury on the landowner even when the invitee (you) knew about the dangerous condition.
The necessary-use exception comes from Parker v. Highland Park, Inc., and the Texas Supreme Court in Austin v. Kroger adopted it as part of the new rule. This exception comes into play when you have no choice but to use unsafe premises. In Parker, the injured party had to use stairs to exit an apartment. The stairs were dark because the lights were on a timer that hadn’t been set properly.
Even though Mrs. Parker knew about the danger (no light on the stairs), she had no choice but to use them. However, the owner still had a duty to make the stairs safe if:
- Parker had to use them; and
- The owner should have figured out that Mrs. Parker couldn’t avoid using the stairs.
The criminal-activity exception also comes from a different case, Del Lago Partners, Inc. v. Smith. Basically, this exception says that in general, “a premises owner has no duty to protect invitees from criminal acts by third parties. We have recognized an exception when the owner knows or has reason to know of a risk of harm to invitees that is unreasonable and foreseeable.”
In Del Lago, there was a three-day frat reunion at a resort. On day one, security had to break up a fight and closed the bar an hour early. This is important because it shows that the owner knew or should have known there was risk of danger to other people at the bar.
On the second day, a wedding party shared the bar with the frat brothers. After 90 minutes, it was clear that there was tension between the two groups. The bar staff did nothing, even though, between what happened on day one and the 90 minutes of tension on day two, they should have known there was a danger. This knowledge put the staff/owner on the hook with a duty to keep the bar safe. A huge fight broke out and the injured parties sued.
Now, just because the owners in both exceptions failed to perform their duties, doesn’t mean it’s an automatic win for the injured parties. As we’ve discussed in other videos, Texas is a modified comparative negligence state. The injured parties in both exceptions knew of the risks and the owners had a duty to keep things safe, but a jury could find that the injured parties’ knowledge of the risk had a hand in creating his/her injuries. In that case, the jury could reduce the money award by the percentage of the injured parties’ negligence.
As you can see, premises liability cases are not easy. If you’ve been injured on someone else’s property, you need an experienced lawyer on your side. Call Justinian and Associates today for a free consultation.