Accident in a Public Place

If you have been injured in a public place, you may have a claim against the owner under the legal theory of “premise liability”.  The term "premises liability" refers to the liability of certain persons for injuries and damages to others arising from the ownership or possession of real property. In Texas, premises liability is based on general principles of negligence and is controlled both by statute and case law.

As in any other negligence case, the injured person must establish the existence of a duty on the part of the defendant to use due care, a breach of this legal duty, and the breach as the proximate or legal cause of the resulting injury.

Premises liability actions have traditionally involved "slip and fall" or "trip and fall" causes of action. Premises liability is not, however, limited to such causes of action and includes, among other things, construction accidents, dog bite cases, and injuries caused by the negligent or willful conduct of third persons on the premises involved.

In determining who is liable in a premises liability action, the crucial elements are ownership, possession, and control of the premises. The person who owns, possesses, or controls the premises is the one responsible for any injuries arising from a condition of the premises.  Negligent premises conditions can exist in just about every type of building or open space, including homes, apartment complexes, theaters, malls, sports facilities, amusement parks, government buildings, commercial buildings, farms, and other open land spaces. Without the crucial element of control over the subject premises, no duty to exercise reasonable care to prevent injury on the property can be found.

An owner or possessor of premises is under a duty to others by virtue of that possession or ownership to act reasonably to keep the premises safe and prevent persons from being injured. A greater degree of care is generally owed to children because of their lack of capacity to appreciate risks and to avoid danger.

If there are any latent or concealed perils on the land, the possessor is under a duty to exercise ordinary care, either to make the condition reasonably safe for those coming onto the land or to give such persons a warning adequate to enable them to avoid the harm. Indeed, where the occupier of land is aware of a concealed condition involving, in the absence of precautions, an unreasonable risk of harm to those coming in contact with it, and is aware that a person on the premises is about to come in contact with it, the trier of fact can reasonably conclude that a failure to warn or to repair the condition constitutes negligence.

A store owner exercises ordinary care to prevent injury to patrons by making reasonable inspections of the portions of the premises open to patrons, and the care required is commensurate with the risks involved. If the owner operates a self-service grocery store, where customers are invited to inspect, remove, and replace goods on shelves, the exercise of ordinary care may require the owner to take greater precautions and make more frequent inspections than would otherwise be needed to safeguard against the possibility that a customer may create a dangerous condition by disarranging the merchandise and creating potentially hazardous conditions.
A possessor’s duty is not limited to keeping the physical property in a safe condition. The premises alone may involve no dangers, but the condition may be unsafe because of the activity taking place on the premises. In such a case, the possessor must exercise due care to ensure that such activities do not harm persons coming onto the premises.

In addition to the duties relating to the condition of the premises and the conduct of activities on the premises, a possessor of land is, under certain circumstances, under a duty to control the conduct of third persons coming onto the premises. An owner of land has a duty to take affirmative action to control the wrongful acts of third persons that threaten invitees where the owner has reasonable cause to anticipate such acts and the probability of injury resulting from such acts. This duty is based on the special relationship between the landowner and the invitee and the general duty to exercise reasonable care in the management of one’s property.

A visitor on someone else's property must also act reasonably. If an unsafe condition of a property is so obvious that a person could reasonably be expected to observe it, the owner or occupier of the property may not have a duty to warn others about the condition. If a reasonable person would have seen the dangerous condition and been able to avoid it, the victim may be found partially or entirely at fault for the accident. If a victim is partially at fault, the concept of "comparative negligence" may apply. The percentage of the victim's fault will be compared to the percentage of the defendant's fault and the amount of damages recoverable by the victim will be reduced proportionally.

A duty to take affirmative action to control the wrongful acts of a third party will be imposed only where such conduct can be reasonably anticipated. Foreseeability is a crucial factor in determining the existence of such a duty. Moreover, foreseeability, when analyzed to determine the existence or scope of a duty, is a question of law to be decided by the court. With regard to the question of the scope of a premise owner’s duty to provide protection from foreseeable third party crime, the scope of the duty is determined in part by balancing the foreseeability of the harm against the burden of the duty to be imposed.

Effective handling of premises liability cases requires a thorough investigation and knowledge of the law and the facts and circumstances which caused the accident. It is essential to hire a well-established law firm with significant resources to retain investigators and accident reconstruction experts to help determine the cause of the accident. It is also vital to select a law firm with extensive experience in handling premises liability cases in order to achieve optimum results. At The Shumaker Law Firm, we use the full force of our firm's extensive resources and expertise to help injured victims receive the compensation they deserve.

 

John Shumaker
Attorney and Counselor at Law