PERSONAL INJURY CLAIMS FOR PREMISES LIABILITY - AN OVERVIEW

Premises liability claims are made on a routine basis for injuries incurred when the claimant is present on another's property. This scenario can occur in different factual settings, the most common of which is a consumer's claim for injuries sustained on the premises of a business. This type of claim can also be made against a homeowner when someone is injured on his or her property.

How do you determine if a particular claim is valid? Case evaluation is always fact intensive, meaning that subtle fact distinctions can affect the outcome. That said, the legal standard in Georgia requires the court to first look at the status of the claimant on the property. If the claimant has been invited onto the property, he enjoys the status of an invitee. Owners or "occupiers" of property owe invitees a duty of ordinary care to protect the invitee from hazards of which the owner or occupier has superior knowledge. (An "occupier" refers to a tenant or some other person lawfully occupying property. The term "owner" will also include "occupiers" as used in the remainder of this article.)

If someone is lawfully present on the property of another but without permission of the owner, his or her status changes to what is called a licensee. As you might expect, the property owner owes less of a duty to a licensee.

If someone is unlawfully present on the property of another, he or she is a trespasser who is owed the least duty of all by the owner. It may strike some as odd that owners have any duty at all to trespassers. An example of this would include mantraps designed to injure trespassers for which the owner may be liable. Owners can also be liable to trespassing children under the doctrine of attractive nuisance, the subject of a future article.

For the sake of simplicity, let's consider a recurring scenario: the garden variety slip and fall claim. This involves a patron who has entered the premises of a business, presumably to contemplate a purchase. The patron has the status of a business invitee to whom the owner owes a duty of ordinary care to protect him from hazards of which the owner has superior knowledge. With larger businesses, the term "owner" includes employees of the business. In order to prove his or her case, a claimant can show that an agent or employee of the owner had actual or constructive knowledge of a hazard on the property but failed to take reasonable steps to either identify or remedy the hazard. Consider a claim involving a slip on a spilled soft drink in a store, causing a patron to fall and sustain injury. In order to establish liability, the patron must show that employees either knew or should have known of the spill on the floor but failed to respond, and that the claimant was unaware of the spill.

Prior to 1997, Georgia cases involving such scenarios were frequently dismissed by the court prior to trial based on what was deemed a lack of sufficient evidence. Thankfully, a Georgia Supreme Court decision changed the legal standard for evaluating such cases. Today, these cases are often determined to present a case only capable of resolution by a jury, and not subject to dismissal by the judge. As a practical matter, this decision has made such claims easier to prosecute and more apt to be resolved by settlement.

Premises cases often involve serious injuries. I have successfully litigated claims involving broken hips, dislocated shoulders, knee injuries and other orthopedic claims. I will discuss some of these cases in more detail in upcoming articles on premises liability.

Copyright 2004 by Schulten Ward & Turner LLP. All rights reserved. For more information contact dlt@swtlaw.com or call (404)688-6800.

THIS ARTICLE IS FOR INFORMATION PURPOSES ONLY AND DOES NOT CONSTITUTE LEGAL ADVICE. FOR SPECIFIC ADVICE ABOUT A LEGAL CLAIM CONTACT A LAWYER OF YOUR CHOOSING.