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By Orlando L. Blanco
I. INTRODUCTION
Premises liability cases encompass a broad
spectrum of tort law. This subject can include a case as simple
as a slip and fall or as complex as a major construction accident.
Obviously, not all cases involving premises liability can
be defended in the same manner. However, some basic general
principles apply to the successful defense of most premises
liability cases.
II. GENERAL PRINCIPLES APPLICABLE
TO THE DEFENSE OF PREMISES LIABILITY CASES
A. Personalize the Premises
Premises liability involves an attack on the integrity
of a premise or physical location. Whether the premises
involved are easily identified with (i.e., home or school)
or rarely owned or possessed by most people (i.e., hotel
or construction site), defense counsel should strive to
personalize the premises involved.
At the very outset of the case, counsel should personally
interview those individuals with the most pertinent knowledge
of the premises and decide who will make the best presentation
to the trier of fact regarding issues of premises liability
involved in each particular case. Counsel should strive
to have that person or those individuals present at every
crucial event of the case, such as site inspections, depositions,
and, most of all, trial.
From a defense perspective, the highest titled official
is not always the best person to personalize a premise.
While it is preferable to use educated, articulate spokespersons
to testify, the best witness for this purpose is often the
individual whom the jury can best identify with (i.e., groundskeeper,
maintenance person, or security guard). Conversely, the
owner of a premise is sometimes the person with whom the
jury can least identify.
B. Site Inspection
What may seem as the most obvious requirement of defending
a premises liability case is often forgotten by counsel
on both sides. Never assume you can gain the necessary knowledge
to defend a premises liability case from a review of photographs,
diagrams, or testimony. Personal observation of the premises
involved is a must for any counsel defending, or for that
matter prosecuting, a premises liability case.
The site inspection should be performed with the client
whenever possible and preferably, with those who have personal
knowledge of the issues involved in the case.
In addition, counsel should always arrange for photographs,
videotapes, or the appropriate pictorial depiction of the
premise to assist in the presentation of the case to the
jury.
C. Experts in Premises Liability
Cases
While the use of expert testimony will not always be necessary
in the more simple premises liability cases, counsel should
decide early in the case whether to employ an expert for
informational purposes even if the expert does not ultimately
testify.
It is useful to employ the services of an engineer or architect
to view the premises with counsel early in the case. Use
the expert to orient you in the application of standards
such as building codes and to assist in recognizing technical
issues that may otherwise go unrecognized.
While experts are often retained by defense counsel to
challenge the testimony of the opponent's expert, they are
rarely retained to help shape the theory of defense in the
case. This should be done whenever feasible, particularly
if the damage exposure is significant or the case involves
technical issues like the application of standards and codes.
D. Use of Statutes and Codes in
the Premises Liability Case
Perhaps the most difficult aspect to defend in any premises
liability case is the breach of a recognized or mandated
statute or code. For this reason, plaintiff's counsel should
review all applicable statutes and codes for possible violations.
This highlights the importance of using an expert early
in the case to review all applicable statutes and codes
that may bear upon the issues in the case, even if it is
not known whether expert testimony will be necessary to
defend the case.
The most pertinent standards applicable in this area are:
1. The BOCA National Building Codes, published by Building
Officials and Code Administrators International Inc.,
4051 W. Flossmoor Road, Country Club Hills, IL 60477-5795,
Phone: (312) 799-2300;
2. Basic National Existing Structures Code, published
by the same entity;
3. ANSI standards published by the American National
Standards Institute Inc., 1430 Broadway, New York, NY
10018;
4. Department of Labor Occupational Safety and Health
Administration standards, effective August 27, 1971 as
published in the Federal Register, volume 36, no. 105.
counsel should consult any state statutory provisions
designed to protect persons using the premises, in question
(i.e., state fire codes, municipal building codes, etc.)1
E. Relating the Premises Liability
Case to the Trier of Fact
While the law prohibits defense counsel from expressly
urging jurors to "step into the shoes" of the
owner or possessor of a premise, this is precisely what
counsel should strive to accomplish.
In some respects, this objective is analogous to personalizing
the premises. Defense counsel should work to get the jury
to judge the defendant by the same standard of reasonableness
available to a homeowner, possessor of apartment unit, or
other premises with which the average juror will be able
to identify with. If the jury deliberates with the impression
that the plaintiff has suffered an injury as a result of
the careless attitude of a large, wealthy corporation, it
is less likely to identify itself with the defendant in
a premises liability case and, in turn, less likely to return
a defense verdict.
III. RECENT LEGAL DEVELOPMENTS IN
PREMISES LIABILITY
While it is difficult, if not impossible, to
cover all significant developments in recent premises liability
law, some trends bear mentioning here.
A. Liability for Criminal Acts
of Third Parties
As can reasonably be expected, the overall increase in
crime has prompted an increase in suits arising on premises
from third party criminal attacks. These types of civil
suits originated with actions by hotel guests against innkeepers
and have now flowed over to include actions against landlords,
property owners, and business establishments.
Under common law, a private person had no duty to protect
another from the criminal acts of third parties.2
However, the recent trend in the law is to carve out exceptions
to the general rule based upon certain special relationships
that might exist between plaintiffs and defendants. For
example, the relationship between hotel guests and innkeepers,
landlord and tenant, and school and pupil have been found
to justify the imposition of a duty to provide protection
against criminal acts.3
B. Open and Obvious Dangers
Courts across the country have begun to actively enforce
the "open and obvious danger" doctrine to preclude
causes of action for premises liability that may have previously
not survived. One of the most recent applications of this
can be found in the case of Riddle v McLouch
Steel Products4, where the Michigan Supreme
Court dismissed the plaintiff's case for injuries suffered
when he slipped and fell on oil located on the floor of
defendant's steel yard. The court at Riddle
held that a premise owner is not liable to invitees where
the dangers are known to the invitee or are so obvious and
apparent that the invitee may reasonably be expected to
discover them.
Although the Riddle case in Michigan simply
applied the Restatement of Torts as a basis for its finding5,
most courts had not previously applied this principle as
aggressively as in the present.
IV. CONCLUSION
The defense of premise liability cases can be
a challenging and sometimes difficult task. However, the application
of basic fundamental principles can assist counsel in developing
and implementing a successful defense tactic to a cause of
action for premise liability.
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1 For a good general discussion of the legal effect
of the violation of statutes and other standards, see 62 AM.
JUR. 2D Premises Liability § 52 et seq.
2 See 2 RESTATEMENT (SECOND) OF TORTS 314. See
also Harper and Klime, The Duty to Control the Conduct
of Another, 43 Yale L. J. 886 (1943).
3 For and excellent summary of recent case law
in this area, see, G. George Lawrence et al., Landlord
Liability for Criminal Acts of Third Parties, FOR THE
DEFENSE 16 (Dec. 1986). See also, Robertson, Negligence
Liability for Crimes and Intentional Torts Committed by Others.
67 TUL. L. REV 135 (1992).
4 485 N.W. 2d (Mich. 1992).
5 See 2 RESTATEMENT (SECOND) OF TORTS § 343
A(1). For a collection of additional recent cases applying
this doctrine, see JOSEPH PAGE, LAW OF PREMISES LIABILITY
§ 4.6 at 22-24. (1993-94).
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