PREMISES LIABLITITY

FOR HUNDREDS OF YEARS,

we knew the English Common Law definition of premises liability to mean "an area of law having to do with a land owner's liability for injuries suffered on his or her property by a guest, business invitee or trespasser."

THOUGH THE YEARS IT WAS ASSUMED

that a land owner was not liable for crime on his property.  Today we are faced with the development of Tort Law or Injury Law that says business and/or property owners will be held liable for injuries received by individuals on their property by criminals or negligent conduct.

WHAT WE HEAR THE COURTS SAYING

is tghat the owner/manager must assure that the premises is maintained in a reasonably safe manner.  And if you have notice and have reason to believe that there is an unsafe or criminal element in the area, courts are saying more and more, that you have to protect the safety of customers, employees, etc., from that element.

WHAT HAS MADE THE COURTS MORE WILLING TO HOLD BUSINESS AND PROPERTY OWNERS LIABLE?

Since the 1960's, courts have become much more liberal in compensating victims of accidents or injuries, and that has made some big changes in premises liability.

For many years, the victim couldn't recover from anyone other than the criminal or negligent individual.  But the problem was that the criminal or negligent individual usually didn't have much money or assets.  So, the courts started looking for a way to compensate the victim and began focusing on the property or business owner in which the accident took place.  Why?  Because those are the people who have the assets to allow them to compensate the person who was injured.

WHAT HAPPENS TO THE CRIMINAL OR PERSON WHO CAUSED THE NEGLIGENT ACT?

In the criminal setting, that person is the one who will be held liable for his/her specific act.  But in the civil lawsuit, which is that lawsuit that is brought for damages caused to someone injured or killed by that criminal act or negligent misconduct, it  is the business owner or property owner that will be sought after.

THE QUESTION IS NOT WHETHER THE CRIMINAL OR NEGLIGENT PERSON WAS AT FAULT

The question is whether or not the premises or business owner contributed in anyway.  Could they have foreseen that it could possibly happen, and that being the case, it is the only thing that needs to be established or proven for a lawsuit.

WHO DOES THIS INVOLVE?

Premises liability can involve any type of company, property or business all the way from convenience stores, shopping malls, and from large corporations to mom and pop operations.  All can be held liable for these negligent theories.

In fact, smaller operations are greater targets because they are easier to pursue than large corporations, and, chances are, they do not have a security program, security systems  or employee training to deal with security and safety issues.

All negligence means is "failure to use ordinary care" and that is a fairly easy statement for a jury to listen to, and, if they look at the facts in a case, and if they feel a great deal of sympathy for the victim who may have suffered a terrible injury, they may easily hold the business property owner liable unless the business owner can prove that he/she did the best they could to anticipate crime or negligence on their property and show that they have done all they could to prevent such a happening.

THE SOLUTION IS BEING PREPARED

It is important to remember that everything you do before an incident takes place is critical and will be examined by the Plaintiff's attorney.  Design a security program, and document all of it. 

WHAT IS AT STAKE IN A LAW SUIT?

There are two types of issues that must be decided by jurors concerning recovery.  The first is ACTUAL DAMAGES, which includes medical bills, loss of wages, pain and suffering, loss of enjoyment of life, etc.  The other category of damages is the one that often results in astronomical verdicts you read about in papers and is called PUNITIVE or EXEMPLARY DAMAGES.  This is where the jury attempt to punish the defendant and assesses a large damage verdict so that the defendant will never repeat the incident.

Part of the problem with punitive damages, and it is a serious problem around the country, is that there are no guidelines to tell a jury how much is enough or at what level they have gone too far.

PREVENTION:

n  Be aware of liability laws  n  Prepare for the crime or negligent act  n  Learn what other businesses are doing  n  Contact law enforcement about trends that affect your business  n  train employees  n  Set up a security plan  n  Install alarm and/or CCTV camera system  n  Be aware of security advances  n  Work with your lawyer if an act results in a law suit  n  Take action ahead of time!

LEGAL PROBLEMS

n  Lack of employee training  n  No implementation of security and safety programs  n  Inadequate response to incidents

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