Nationally, more people are seriously injured in premises-related incidents than in motor vehicle collisions. Fortunately, the duty of care that applies in vehicle collisions applies to property owners as well, at least in most cases.
Eight million Americans are treated in emergency rooms every year after a serious fall, and most of these victims are either younger children or older adults. Many of these falls occur because of obstacles on floors, like wet spots, or because of adverse environmental conditions, like burned-out lights that decrease visibility at night.
Many children are also seriously injured at playgrounds, mostly due to falls and snagged clothing. Nearly all these injuries occur at public outdoor playgrounds, like the ones at parks, daycares, and schools.
Swimming pools are a third major problem area, as the number of injuries from either unintentional drowning or water poisoning are measured in the hundreds every year. In terms of drownings, as little as two or three minutes of oxygen deprivation is enough to cause permanent injuries in many children. Napoli Shkolnik who has experience as a swimming accident attorney says “Swimming accidents have an enormous impact on a family’s livelihood”. As for poisonings, many pool cleaning chemicals are fatal in large amounts and some other pool water is not clean enough to kill dangerous bacteria.
Like most other states, New York uses a classification system derived from English common law to determine duty in premises liability cases.
Most people are invitees, because the landowner expressly or impliedly invited them to come onto the property. Moreover, the owner derives an actual or potential benefit from their presence. That benefit could be nonmonetary, like the social interaction that party guests bring, or monetary, like a shopper. Potential economic benefit invitees include job applicants and window shoppers.
Owners have three legal duties in these situations. First, they are bound by a duty of reasonable care; second, they must inspect the property to ensure that it is safe; and third, they must protect invitees against foreseeable third-party crimes.
Trespassers, which simply means a party crasher or someone else without express or implied permission to be on the land, are on the other end of the scale. Owners owe no duty to trespassers other than to refrain from any intentional harm, so the stories about injured prowlers who successfully sue homeowners for their injuries are largely untrue. There are two major exceptions to this rule:
- Frequent Trespasser: The state legislature recently limited this exception, and now, owners of recreational land are almost never responsible for trespasser injuries, such as a hunter who wanders over the property line.
- Attractive Nuisance: This exception is still largely in place, and often applies to child trespassers when they are injured in swimming pools.
If a trespasser exception applies, the victim is an invitee for purposes of that lawsuit, and all the above duties are applicable.
The third category, licensee, applies in those rare instances when the victim has permission to be on the land, but the owner obtains no actual or potential benefit. Guests of hotel guests are arguably licensees.
Even among invitees, the owner is only responsible for damages caused by a dangerous condition that the owner either knows about, or should know about.
Surveillance video, restroom cleaning logs, and “cleanup on aisle nine” announcements are all evidence of direct knowledge, and such evidence is available in most premises liability cases. Typically, personal injury attorneys find out about this evidence during the discovery process.
If there is no “smoking gun” direct evidence, the plaintiff may use circumstantial evidence to establish constructive knowledge (should have known). The procedure for evaluating this evidence comes from Anjou v. Boston Elevated Railway Company, which is known in some circles as the “banana peel case.”
In the early 1900s, Ms. Anjou slipped and fell on a banana peel in a Boston train terminal. Significantly, witnesses consistently said that the peel was completely black, as if it had been on the floor quite some time and repeatedly trodden over.
The railway company denied that it knew anything about the peel and therefore argued that it was not liable for Ms. Anjou’s damages. But Judge Benjamin Cardozo, who later ascended to the United States Supreme Court, developed a test for evaluating circumstantial evidence of constructive knowledge:
- Black Peel: If the hazard had existed for some time, the owner should have known about it and is therefore liable for damages.
- Yellow Peel: If, on the other hand, the hazard had appeared only recently, knowledge cannot be imputed to the owner.
- Brown Peel: These cases are in a grey area (pardon the expression), and more evidence is needed to either establish or refute a constructive knowledge claim.
In all these situations, victims are often entitled to substantial compensation for both tangible damages, such as lost wages, and intangible damages, such as pain and suffering. Punitive damages are sometimes available as well, in extreme cases