Premises liability and slip and fall cases are the second most often encountered cases after auto cases. Premises liability depends on the breach of duty of the landowner juxtaposed with why the injured person was on the land.
- Standard of Care & Burden of Proof
The standard for recovery against a landowner, and the burden of proof and jury instruction therefore, is dependent on the injured person’s status, as invitee, licensee or trespasser. An invitee is someone who enters onto the land with the consent of and benefit to the owner or the possessor of the land. Seward v. Terminal R.R. Ass’n, 854 S.W. 2d 426 (Mo. 1993). No specific invitation is necessary, and businesses to open to the public attract invitees. Carter v. Kinney, 896 S.W. 2d 926 (Mo. 1995). For an invitee to recover for a slip and fall case she must show that: a dangerous condition existed on the premises; the owner/possessor knew, or should have known, of the condition; and the owner/possessor failed to use ordinary care to remove, remedy or warn of the dangerous condition. Barbel v. Central Markets, 896 S.W. 2d 746 (Mo. App. 1995). Due to the greatly different standards of proof, being able to characterize the plaintiff as an invitee is important.
A licensee occupies land for the licensee’s own purposes, such as using a path across the land as a short cut. Seward. A licensee must prove: a dangerous condition existed on the property; the landowner/possessor had actual knowledge of the dangerous condition; the plaintiff lacked knowledge of that condition and could not have discovered it using ordinary care; the owner/possessor knew or should have known that the plaintiff was unaware of the condition and could discover it; and the owner/possessor failed to use ordinary care to remove, remedy or warn of the condition. Wells v. Goforth, 443S.W. 2d 155 (Mo. App. 1969). A trespasser is a person entering on the land without consent or privilege from the landowner to enter the land, with permission being expressly or impliedly denied. Seward. A trespasser must show that: a dangerous condition existed on the premises; the landowner/possessor had actual knowledge of the condition; and the owner/possessor also actual knowledge of the presence of the trespasser. Seward. Note that this trespasser standard has exceptions such as the Attractive Nuisance Doctrine, recurring trespasser, dangerous condition in a public right of way, or intentional action to injure the trespasser. Anderson v. Cahil, 485 S.W. 2d 76 (Mo. 1972).
To recover for premises liability, the defendant has to have control of the premises where the injury occurred. Dildine v. Frichtel, 890 S.W. 2d 683 (Mo. App. 1994). Thus, a landowner who leases an entire premises to a tenant or relinquishes complete control to an independent contractor for a construction project, generally cannot be liable to the tenant’s or the contractor’s invitees. A landlord is liable to a tenant or a tenant’s invitee only if; the landlord has knowledge of the dangerous that is concealed and is not discoverable by the tenant; the dangerous condition occurs in a common area or joint use area; or the landowner is responsible for making repairs and negligently fails to do so. J.M. v. Shell Co., 922 S.W. 2d 759 (Mo. App. 1996). If an attorney is faced with peculiar fact situations such as a criminal attack on the plaintiff by a third person, inherently dangerous activity on the land or similar issues, a particular assessment for those unique circumstances must be done.
The plaintiff must show that the property hazard at issue was not known or reasonably discoverable by her as an element of her claim. Harris v. Neihous, 857 S.W. 2d 222 (Mo. App. 1993). A landowner or occupier is not required to remedy a condition that generally affects all property in the area such as snow, ice or rain. Wills v. Springfield General Osteopathic Hosp, 804 S.W. 2d 416 (Mo. App. 1991). Thus, if a landowner does not shovel her lot and someone does slip and fall, the landowner should be liable. When handling ice or snow cases, make sure that the plaintiff was injured as a result of improper and inadequate shoveling, and not natural accumulation.
The potential Defendants in a premises liability action are the landowner, tenants, occupiers of the land, and the person or entity hired to maintain and repair the premises. There may be other potential defendants depending on the facts of a particular case, such as products liability.
Governmental entities can be liable for injuries from dangerous conditions in a public property. Caldweir v. McGaham, 894 S.W. 2d 237 (Mo. App. 1995). The focus of such a claim should be the dangerous condition of the property at issue, whether road, park or other property, was caused by the negligence of the municipality, or negligent or defective design. Yates v. Butler, 929 S.W. 2d 264 (Mo. App. 1995). The focus of such a claim should be that that the dangerous condition of the property at issue, whether road, park or other property, was caused by negligence of the municipality, or negligent or defective design. Yates v. Butler, 929 S.W. 2d 264 (Mo. App. 1996). Municipalities will often defend premises liability cases with the theory that if the jury believes that there was enough notice to the city that a dangerous condition existed, a fortiori the plaintiff should have known of the dangerous condition and should have avoided or should be charged with some type of contributive fault for failing to do so. Not that to succeed in a claim against a municipality or government entity, plaintiff must prove actual notice of dangerous condition prior to the time of the injury, §537.600. In addition, Missouri statutes and some city charters require notice given to the mayor or other officer of the municipal corporation within a specific time period after injury for subsequent claim to be valid. See e.g. Mo. Rev. State. § 82.210. Thus, if the defendant is a municipality, carefully analyze and establish that your client has come to you within the time limitations, and immediately provide notice to the Mayor of the municipality by certified mail, return receipt requested so that you can prove compliance with those requirements. This not a statute of limitations that can be waived or tolled, but a prerequisite to the claim. Note that governmental entities have their damage exposure limited by §537.610. Effective January 1, 2001 those sovereign immunity limits are $2,079,420.00 for claims arising out of single accident or occurrence, and $311,913.00 for only one person in a single accident or occurrence.
- Additional elements of a claim
A premises liability action should establish: the status of the plaintiff as invitee (licensee); description of the dangerous condition of the property; the necessary level of knowledge of defendant and plaintiff regarding the dangerous condition; that the defendant was negligent in causing the defective condition, or failing to correct or warn of the dangerous condition; and damages to plaintiff approximately thereby. Note that the likely defenses raised in slip and fall cases are that he hazard was open and obvious or was due to general weather conditions and not the fault of the defendant.
A negligence per se action can be maintained against a landowner for violation of local building codes. Just like in vehicle statutes and regulations, premises have building codes setting out standards for the safe habitation and use of land and buildings. Proving a building ordinance violation and resulting damages is sufficient to recover against the landowner. Building codes also establish a standard by which the negligence of the Defendant can be measured. Please note that there are specific proof requirements to place building ordinances into evidence, including copies of the building code and the ordinance of the municipality adopting the building code. There are uniform national building codes that municipalities adopt, such as BOCA National Building Code. Also, punitive damages may be obtained in premises liability actions if the necessary outrageous conduct, knowledge of a high degree probability of injury to a specific class of persons by a dangerous property condition. Litchfield v. May Dep’t Storage Co., 845 S.W. 2d 516 (Mo. App. 1992).
Premises liability jury instructions are MAI 4th 22.01-22.09, and the verdict directing instruction using comparative fault principles is MAI 37.01. The defense will use converse instructions trying to establish that the dangerous condition was open and obvious and that the plaintiff failed to keep a careful lookout.