- THE MAGAZINE
- WEB EXCLUSIVES
Property owners should try to prevent accidents and lawsuits. Proactively inspecting for dangerous conditions, repairing them, and implementing record keeping procedures can reduce legal fees and damage awards, slow increases of insurance premiums, and improve profitability.
Most premises liability claims are negligence claims against property owners. A plaintiff must prove that the (1) owner owed him a duty of care, (2) owner breached that duty, and (3) the breach was the foreseeable cause of an injury.
The nature of the owner’s duty depends on the plaintiff’s status (i.e., invitee, licensee, trespasser). An invitee is a member of the general public (e.g., a customer) who has the owner’s invitation to enter or use the premises. Owners owe invitees a duty of reasonable and ordinary care. Owners must reasonably inspect the premises and warn invitees of dangerous conditions.
A discussion of licensees is beyond the scope of this column, but essentially, they are permitted onto the property for specific purposes and are owed a duty similar to the one owed to invitees. Usually, an owner does not owe a duty to trespassers, but to prevent unnecessary problems, owners should try to restrict their access.
An injured person does not necessarily have a valid negligence claim. An owner who has met its standard of care by fulfilling its duty is not negligent. A plaintiff must prove that the owner knew about the condition and failed to warn invitees or remedy the problem. Owners have actual notice when they or one of their agents sees it or receives notice of the condition. Where a condition has existed for a long time and the owner should have known about it, the owner has constructive or implied notice.
Highly-trafficked commercial buildings have “transient” conditions that go into and out of existence. For example, puddles of water evaporate or are mopped up. Litter is swept up or blows away. An owner can’t be expected to maintain a round the clock cleaning crew or watch every inch of space all the time. Transient will always exist. If a customer in a shopping mall food court spills a drink and another customer slips on it a moment later, it is almost impossible that one of the owner’s agents could have noticed the spill or cleaned it. Thus, the owner would not have breached its duty.
Owners should adopt a complaint procedure and encourage tenants and invitees to log dangerous conditions. Complaints should be directed to and maintained in a central location. This enables the owner to address them efficiently and effectively. If a plaintiff alleges that he continually complained about a condition, the claims can be verified or refuted by reference to the formal complaint log.
Whenever a tenant requests work or lodges a complaint, the agent should create a work ticket to document it. If necessary, an employee or independent contractor should be assigned to address the issue. After it is addressed, the tenant and worker should sign the ticket. Later, this will prevent the plaintiff from alleging that the work did not occur or was unsatisfactory. By maintaining a computer file, the documentation can be maintained indefinitely. Landlords should maintain a folder for each tenant containing all relevant information including the lease or rental agreement, court documentation, the identity of the tenants’ bank and employer, police reports, correspondence with and about the tenant, and the tenant’s complaints and work requests.
Commercial property owners should clean the premises according to a regular schedule. If the company has an employee manual or handbook, it should contain cleaning and inspection duties and procedures. If a worker discovers a dangerous condition, if possible, he should watch the site and call a colleague (e.g., by cell phone) to bring cleaning supplies or a sign (such as a wet floor sign) to notify people of the danger. Well-maintained cleaning and inspection logs can prevent accidents and help prove owners were not negligent.
Editor’s note: This column does not constitute legal advice.