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Premises Liability

Premises liability involves a legal claim by an individual who is injured on the property of another. The injured party may bring a claim (i.e., a lawsuit) against the owner of the property or the person or entity occupying or controlling the property at the time of the injury. Liability for the claimant’s injury is generally the same whether the injured party brings an action against an owner or an occupier of the premises. The main exception to this rule is that a landlord who has fully parted with possession and the right to possession is subject to a special statutory exemption. Generally speaking, an owner is not liable for a claimant’s injury simply by virtue of the injury occurring on the owner’s premises. The claimant must prove that the owner was negligent (by and through “knowledge” of the problem), and, in turn, that the owner’s negligence caused the claimant’s injury. Examples of premises liability claims can take many different forms, some of which include the following:

  • Food, liquid, or other foreign substance on the floor;
  • Black ice and other types of snowy or icy conditions;
  • Buildings with collapsing floors, walls, or roofs;
  • Falling merchandise;
  • Uneven sidewalks or curbs, holes, broken handrails, or other such hazards;
  • Hazards on the property that violate the building codes;
  • Inadequate lighting;
  • Swimming pools without proper fences and gates; and,
  • Negligent security resulting in assault, rape and homicide victims.

A premises liability case can be a minor incident or a major catastrophe. If you are the victim of a slip and fall in Georgia that was due to the action or inaction of another party, a skilled Georgia slip and fall attorney is an expert in this area of personal injury law and can get you the maximum compensation to which you are entitled. Common injuries a Georgia slip and fall attorney will typically see include:

  • Fractured Hips and Other Bones;
  • Wrist Injuries;
  • Traumatic Brain Injury;
  • Injuries To The Back And Spinal Cord;
  • Concussions;
  • Tendon And Ligament Tears; and,
  • Permanent Scarring.

As mentioned above, a premises liability case can arise from many different factual scenarios and circumstances. The main crux of these types of cases is that the owner/occupier of the land had knowledge, or should have had knowledge of a dangerous condition, which the injured party was not aware of, and failed to take action to alleviate the dangerous condition or give proper warning. In order to recover damages, one must generally prove that:

  • A dangerous condition existed on the premises;
  • The property owner knew of the condition but failed to fix it in an efficient manner or post warning signs; and,
  • You were injured as a result of that dangerous condition.

Some of these different factual circumstances are further discussed below.

WHAT IS THE NORMAL COURSE FOR A PREMISES LIABILITY LAWSUIT?

Generally speaking, a premises liability lawsuit starts with the injured party filing a civil action (commonly referred to as a “Complaint”) in the county where the owner/occupier of the land lives and/or conducts business. After a Complaint is filed by the claimant, the named Defendant will file an “Answer” responding to the allegations set forth in the “Complaint.” The parties to the lawsuit then will engage in discovery which includes the taking of depositions of the parties, witnesses and experts and exchanging documentation with the opposing side. The Defendant owner through counsel will usually file a motion for summary judgment at the close of discovery. The thrust of this motion is that even considering all the evidence gathered during the discovery process and viewing this evidence in a light most favorable to the claimant, the claimant cannot as a matter of law support a claim against the owner. By filing the motion, the owner has the chance of obtaining a dismissal of the claimant’s action without incurring the additional cost and expense of trial. For the purposes of ruling on a motion for summary judgment, the court assumes that the claimant’s version of events is correct, and the motion must be denied if there is any genuine issue of material fact as to the owner’s liability. Although the owner has the burden of persuasion on a motion for summary judgment, there are times when he is entitled to judgment as a matter of law. Assuming that the Defendant’s motion for summary judgment is denied, the case is then tried before a jury which will determine liability and damages, if applicable.

WHAT IS A “SLIP AND FALL” PREMISES LIABILITY CASE?

The most common premises liability claim is a “slip and fall” case where the claimant slips on a foreign substance on the floor of a business premises. A foreign substance is anything on the ground that is not ordinarily present, such as a puddle of liquid, a grape, a piece of paper or any other food, beverage or item. Property owners generally have two basic defenses to slip and fall claims:

  • The first defense is that they were not negligent. For example, the owner may claim that the banana that a patron slipped upon had been dropped on the floor only moments ago by another patron, and that, in the exercise of due diligence, a typical store owner acting with reasonable care would not have had time to discover the danger and take steps to mitigate the danger.
  • The second and more typical defense is that the person who was injured was at fault. For example, the owner may claim that any reasonable patron, exercising due diligence for his or her own safety, would see the banana on the floor, and take those steps necessary to avoid slipping on it.

Injuries from a slip accident, trip accident, or fall accident can be very painful and require a great deal of time for recovery. This means that an injured person will likely have to take time off from work (resulting in lost wages) or school, and they may need additional help to complete normal, everyday tasks, such as driving a car, taking care of children, or running a household. Back injuries, spinal cord injuries, dislocated hips, broken bones, and other slip and falls may require multiple surgeries and costly rehabilitation. Because of a general perception that slip and falls are at least partly the fault of the person injured, however, slip and fall injuries can be difficult cases to prove and recover damages.

Dangerous conditions and hazards frequently occur from poor maintenance. Many of these hazards could be avoided if proper care was taken by the owner or manager of the location where the accident occurred. In most cases a slip and fall injury results either from a victim falling forward or by a victim falling backwards. Both types of falls can result in serious harm or death. A similar type of accident can occur when your foot comes into contact with an object or obstacle along your path. This is known as a trip and fall.

What Should You Do After a Slip and Fall Injury?

  1. Get Medical Help For Your Injuries. If you have been injured in a slip and fall accident you should seek medical treatment right away. You could worsen your injuries by waiting to get help. In severe case it may be necessary to call for an ambulance to prevent further injury. It is important for you to inform the medical provider of all pains or issues you are experiencing.
  2. Determine What Caused Your Slip and Fall. In order to be successful in making a claim it will be important to know why the accident occurred. Identify any witnesses present and take pictures of the scene where you were injured if you can. If possible, report the incident to the owner or manager of the location. By getting the owner or manager to write up a report it will prevent a later denial that the accident ever took place. The report should include the date and time, names of witnesses, as well any other information relating to the slip and fall.
  3. Contact An Experienced Slip and Fall Attorney. Since time is of the essence do not hesitate to contact an attorney for your case. A prompt investigation is vital to your case and the longer you wait, the less likely relevant facts may be discovered. An experienced slip and fall attorney (also called a trip and fall attorney) will assist you preserving evidence of the accident, identify and locate witnesses, and initiate the proper steps in commencing your legal case.

WHAT IS A “STATIC CONDITION” PREMISES LIABILITY CASE?

A static condition is a structure or feature on the premises that does not change, such as a ramp, a hole in the ground, stairs, or a curb. A static condition is not dangerous unless someone fails to observe it and trips over it. Liability for static conditions, like that for “slip and fall” cases, is determined by the two prong test espoused in the Georgia Supreme Court case of Robinson v. Kroger Co. However, the application of this test is slightly different when a static condition is the cause of the accident. Unlike with a foreign substance case, a static condition is present for weeks, months or even years on the premises without any change. Unless someone complains of the condition or is injured during this extended time period, the business owner has no reason to believe that the condition presents a hazard. Accordingly, the business owner will often be entitled to summary judgment because of his lack of knowledge that the condition poses a danger to customers. However, an owner is required to inspect the premises for obviously dangerous static conditions such as potholes, and an owner is generally presumed to have knowledge of any structure on the premises which does not comply with building codes or standards, such as an improperly constructed ramp.

Because a static condition does not change, if a claimant has successfully negotiated the allegedly dangerous condition on a previous occasion, he is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom as long as the condition was noticeable during the prior trip and the claimant takes the same route both times. An exception to this rule is when the static condition is altered or combines with other factors to create the hazard. A claimant who had visited a home construction site on several occasions was not barred from recovery when he slipped and fell on a walkboard that did not have runners since the walkboard had been equipped with runners on his prior visits. Likewise, a claimant who had walked on a ramp without incident in the past could still recover for a fall during rainy weather since the claimant alleged that her injury resulted from the combination of the ramp’s slope and lack of non-skid coating and the presence of water.

WHAT IS AN “AMUSEMENT PARK” PREMISES LIABILITY CASE?

Even though an amusement park operator owes its patrons a duty to exercise ordinary care for their safety, an operator will often be entitled to summary judgment when a patron is injured on a ride since the patron will have assumed the risk of injury. A person who rides or uses an amusement device assumes the hazards naturally and obviously arising from the proper use and operation of the device. A patron on a roller coaster ride cannot recover for injuries which occur when her shoulder strikes the inside of the coaster on a sharp turn, a parent cannot recover when his child is injured on a water slide after flipping over during the course of the ride, and a patron cannot recover for injuries resulting after she jumps off her raft at the end of a water ride and is struck by an oncoming raft. A patron may recover for injuries if the ride itself malfunctions or if the ride operates in a different and more dangerous manner on the occasion in question, such as when an operator allows water slide patrons to form a “train” down the slide.

WHAT IS AN “ELEVATOR” OR “ESCALATOR” PREMISES LIABILITY CASE?

An owner also owes a duty of extraordinary care to customers using an elevator or escalator and cannot delegate this duty to another entity. Despite this extraordinary duty, an owner is not liable simply because an injury occurs, and even if a device malfunctions, there is no presumption of negligence. Once an owner has knowledge of a malfunction, he must make the appropriate repairs or warn passengers of the problem. If a passenger’s injury results from a “slip and fall” rather than mechanical failure or improper use, then the owner only owes the passenger a duty of ordinary care.

Georgia law requires that all elevators, other than hand elevators and power and hand dumbwaiters, and all escalators must be inspected every six months and must comply with American National Standard Safety Codes. Any elevator or escalator involved in an accident must be removed from service at the time of the accident and shall not be repaired, altered, or placed back into service until inspected by a certified inspector. If an owner fails to adhere to this rule and repairs the elevator or places it back into service after an accident, then the claimant is entitled to a rebuttable presumption that the owner was negligent in the maintenance of the device. This presumption does not occur, even if the owner violated the statute by failing to allow an inspection, when the claimant trips and falls while entering the elevator and there is no evidence either before or after the fall that the elevator was malfunctioning.

Because elevators and escalators are mechanical devices that will inevitably break down and sometimes become dangerous and cause injury without negligence on the part of the owner, the owner must have been able to discover the problem prior to the malfunction in order to hold the owner liable for the resulting injuries. When a malfunction is due to the failure of an axle bearing, and there is no way to predict the bearing’s life expectancy or when it will give out, the owner is not liable for the claimant’s injury as a matter of law. On the other hand, if a visual inspection during routine maintenance of the escalator could have revealed a problem, then a triable issue exists as to the owner’s liability for a claimant’s injury resulting from a subsequent malfunction.

WHAT IS A “FALLING OBJECTS” PREMISES LIABILITY CASE?

Customers will sometimes be struck by merchandise or boxes which fall from a shelf at a store. If the merchandise is in an area which is easily accessible to customers or other individuals, there is no presumption of negligence on the part of the owner. In such a scenario, the claimant must show that the owner was aware or should have been aware of the defective manner in which the merchandise was placed on the shelf. The claimant can sustain this burden by showing that there had been prior incidents of merchandise falling from the shelves, that employees were in the vicinity and should have seen the defect, or that the defect had remained for a time sufficient to locate the defect with a reasonable inspection. If the merchandise originated from a section of the store which was within the exclusive control of the owner and there is no evidence that a customer or other individual moved the item, then the claimant is entitled to rely upon the doctrine of res ipsa loquitor, which states that an inference of negligence arises in favor of the claimant when an injury results from an unusual event with respect to property under the owner’s control. An owner is not liable when the claimant’s injury is the result of an improper and unexpected use of a store display.

WHAT IS A “SWIMMING POOL” OR “WATER HAZARD” PREMISES LIABILITY CASE?

Generally speaking, if an owner erects a suitable fence around the pool, he will usually be insulated from liability for an injury to a trespassing child. When the fence around the pool has a section missing where a child could have crawled under it and the latch to the primary fence gate is not working, then a jury issue exists as to the liability of an owner for a child’s drowning. If the child is on the property as a guest of the owner, the child’s parents cannot recover when he drowns in the owner’s pool, even if there is no gate on the pool, since the existence of the pool is an open and obvious condition and the child is not a trespasser so as to trigger the attractive nuisance doctrine. Similarly, an owner is not responsible for a child’s drowning when the child’s mother was supposed to be supervising the child, and the pool itself was not defective.

An owner can be held liable for a guest’s injury in a pool if the owner failed to provide proper equipment or supervision. A failure to repair a broken light creates a jury issue as to an owner’s responsibility for the drowning of a teenager during a party at night. A public facility can also be held liable if it provides lifeguards, and there is evidence that they were negligently supervising the swimmers.

Another scenario involving potential liability for an owner concerns a claimant who dives into a pool or lake and is injured when his head strikes the bottom. When a person dives headfirst into a lake without checking the water’s depth and is paralyzed, the claimant’s own negligence is the proximate cause of his injuries as a matter of law. Likewise, a claimant who dives into a pool with black water and no marker from which he could make a judgment as to the depth assumes the risk of injury, and his own negligence cuts off any liability for the owner. A claimant also cannot recover for his injuries if he is familiar with the depth of the pool and the location of the shallow end, regardless of the lack of warning signs or depth markings. On the other hand, if a pool has a diving board, then the owner has a duty to warn guests as to any hidden perils presented by diving from the board including that the water under the board is only four foot deep.

WHAT IS AN “ALCOHOL” OR “DRAM SHOP” PREMISES LIABILITY CASE?

An owner who willfully, knowingly and unlawfully sells, furnishes or serves alcoholic beverages to a person who is in a state of noticeable intoxication, knowing that such person will soon be driving a vehicle, may become liable for injury or damage caused by or resulting from the intoxication of such minor or person when the sale, furnishing or serving is the proximate cause of such injury or damage. If the owner in the exercise of ordinary care should have known that the recipient of alcohol was noticeably intoxicated and would be driving soon, then the owner will be deemed to have knowledge of that fact and will be exposed to liability for providing alcohol to a noticeably intoxicated person. A claimant may prove that the purchaser of alcohol was noticeably intoxicated by expert testimony based on the blood alcohol content of the individual even if witnesses testify that the purchaser did not appear intoxicated.

An owner who willfully, knowingly and unlawfully sells, furnishes or serves alcoholic beverages to a person who is not of lawful drinking age, knowing that such person will soon be driving a motor vehicle is also potentially liable for injury or damage caused by or resulting from the intoxication of such minor. An owner is not liable for selling alcohol to underage friends of a driver unless the owner should have known that the alcohol was to be consumed by the driver and that the driver was underage. When the purchaser provides a driver’s license showing that he is 21 years of age or older even though he is actually a minor, there is a rebuttable presumption that the owner did not knowingly sell the alcoholic beverages to a minor.

The actual consumer of the alcoholic beverage may not recover against the owner for injury or damages suffered by himself. The rule against a consumer recovering against the owner does not apply as to a passenger’s action for injuries in a one-car accident even though both the passenger and driver had been drinking. If the injury is the result of falling out of the car rather than caused by an accident involving the operation of the vehicle, then the claimant cannot recover against the provider of the alcoholic beverages. A homeowner, who does not have a store licensed for the sale of alcoholic beverages, is not liable to any person who consumes alcoholic beverages on the premises unless the owner actually gives his consent to the consumption.

WE CAN HELP

A negligent property owner who has injured you may seem sincerely sorry and offer you money for your medical bills. An insurance company for a negligent property owner may even offer you a sum of money that seems reasonable. However, lost wages, ongoing medical treatments and pain and suffering can be difficult to properly ascertain. Remember, only a lawyer has the training to assess and give you an objective value of your claim. Do not let an insurance company or negligent property owner bully you into accepting their offer. Insurance companies are armed with lawyers who are paid to destroy your case. You need your own attorney to protect you.

If you have sustained an injury due to a dangerous or hazardous property condition, you may have the right to sue the property owner for damages. At Jackel & Phillips we have the requisite training and experience in premises liability law to help you. We take all of our clients’ cases very seriously, and do whatever is necessary on our part to ensure our clients are fairly compensated for their injuries. If you think you may have a premises liability claim, please don’t hesitate to set up a free consultation with our firm today.