Preventing and Defending Against Premises Liability

by Bryan L. Berson, Esq.

Property owners should try to prevent accidents and lawsuits. Proactively inspecting for dangerous conditions, repairing them, and implementing record keeping procedures can reduce legal fees and damage awards, slow increases of insurance premiums, and improve profitability.

Most premises liability claims are negligence claims against property owners. A plaintiff must prove that the (1) owner owed him a duty of care, (2) owner breached that duty, and (3) the breach was the foreseeable cause of an injury.

The nature of the owner’s duty depends on the plaintiff’s status (i.e., invitee, licensee, trespasser). An invitee is a member of the general public (e.g., a customer) who has the owner’s invitation to enter or use the premises. Owners owe invitees a duty of reasonable and ordinary care. Owners must reasonably inspect the premises and warn invitees of dangerous conditions.

A discussion of licensees is beyond the scope of this column, but essentially, they are permitted onto the property for specific purposes and are owed a duty similar to the one owed to invitees. Usually, an owner does not owe a duty to trespassers, but to prevent unnecessary problems, owners should try to restrict their access.

An injured person does not necessarily have a valid negligence claim. An owner who has met its standard of care by fulfilling its duty is not negligent. A plaintiff must prove that the owner knew about the condition and failed to warn invitees or remedy the problem. An owner has actual notice when it or one of its agents sees it or receives notice of the condition. Where a condition has existed for a long time and the owner should have known about it, the owner has constructive or implied notice.

Highly-trafficked commercial buildings, have “transient” conditions that go into and out of existence. For example, puddles of water evaporate or are mopped up. Litter is swept up or blows away. An owner can’t be expected to maintain a round the clock cleaning crew or watch every inch of space all the time. Transient will always exist. If a customer in a shopping mall food court spills a drink and another customer slips on it a moment later, it is almost impossible that one of the owner’s agents could have noticed the spill or cleaned it. Thus, the owner would not have breached its duty.

Owners should adopt a complaint procedure and encourage tenants and invitees to log dangerous conditions. Complaints should be directed to and maintained in a central location. This enables the owner to address them efficiently and effectively. If a plaintiff alleges that it continually complained about a condition, the claims can be verified or refuted by reference to the formal complaint log.

Whenever a tenant requests work or lodges a complaint, the agent should create a work ticket to document it. If necessary, an employee or independent contractor should be assigned to address the issue. After it is addressed, the tenant and worker should sign the ticket. Later, this will prevent the plaintiff from alleging that the work did not occur or was unsatisfactory. By maintaining a computer file, the documentation can be maintained indefinitely. Landlords should maintain a folder for each tenant containing all relevant information including the lease or rental agreement, court documentation, the identity of the tenants’ bank and employer, police reports, correspondence with and about the tenant, and the tenant’s complaints and work requests.

Commercial property owners should clean the premises according to a regular schedule. If the company has an employee manual or handbook, it should contain cleaning and inspection duties and procedures. If a worker discovers a dangerous condition, if possible, he should watch the site and call a colleague (e.g., by cell phone) to bring cleaning supplies or a sign (e.g., a wet floor sign) to notify people of the danger. Well-maintained cleaning and inspection logs can prevent accidents and help prove owners were not negligent.

About the Author:  Bryan L. Berson, Esq. is an attorney and mediator at The Berson Firm, P.C., a commercial and civil law firm that handles estate administration and planning, real estate, commercial transactions, mediation, and commercial litigation.  His e-mail is bberson@bersonfirm.com.  His phone number is (631) 517-1055.  Connect with The Berson Firm on Facebook and Bryan L. Berson on LinkedIn.  The firm’s website is www.bersonfirm.com.

Disclaimer:  Constructive Knowledge is published by The Berson Firm, P.C. (the “Firm”).  The information contained in this column is provided for informational purposes only.  It is not tax or legal advice on any subject matter.  No readers, clients or otherwise, should act or refrain from acting on the basis of any content without seeking appropriate legal or other professional advice with respect to one’s particular circumstances.  This column reflects a general discussion of the law in New York.  It may not accurately reflect the law of other states.  The content is general information and may not reflect current legal developments, verdicts, or settlements.  The Firm expressly disclaims all liability with respect to acts taken or not taken based on any or all content of this column.  This column is Attorney Advertising.  IRS Circular 230 Legend:  Nothing in this column is intended to be used and cannot be used to avoid U.S. federal, state, or local taxes.  It was not written to promote, market, or recommend any tax planning strategy or action.  Copyright:  All rights reserved.  No part of this publication may be reproduced without prior written consent.  Readers may share this column through, but not limited to, social networks.

2 comments

  1. […] insurance and indemnification provisions, property owners can shift risks to the contractors. Preventative maintenance will reduce the number of accidents. When they occur, meticulous documentation can prevent or defend against meritless lawsuits. All of […]

  2. […] a court rules that the landlord was negligent, his liability can be reduced by the invitee’s own negligence. This is known as “contributory […]

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