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    Premises Liability

    You have likely heard about the allegorical “slip and fall” case in which someone steps on a grape left on the floor of a grocery store, suffering an injury as a result. This is the classic example of what Washington law calls, “premises liability.” In this article, we will take you through a high-level examination of how property owners and occupiers can owe a legal duty of care to others, what constitutes a valid legal claim for premises liability, and address some special situations that can affect whether you have a claim and how much you can recover for it.

    What is Premises Liability?

    It is difficult to imagine an existence in which you spend your whole day on your own property. Chances are, you will find yourself going onto land and into buildings owned by others, and at least statistically the chance exists that when you do you could be injured by some condition existing there. For many years, courts in Washington and other states have recognized a legal responsibility, based on personal injury law, for people who own property to be aware of possible hazardous conditions and to take reasonable precautions to prevent others from suffering harm because of them.

    What kinds of places are subject to premises liability claims?

    Premises liability can occur in both privately-held and public places: offices, stores, homes, amusement parks, construction sites, shopping malls, industrial parks, and even on government property. As long as there are other people involved in the ownership or control of the property where you are injured, premises liability must be a consideration for you.

    How do you make a claim for premises liability?

    If you get hurt on someone else’s property, before you can recover damages for your injury, you must establish a cause of action for premises liability. Doing this requires the following:

    • You need to file your legal claim in a timely manner. In Washington, the statute of limitation for personal injury claims is three years, beginning on the date when the injury happened. Failure to file within the statute of limitation can preclude your ability to pursue your claim.
    • You need to establish what your legal status was when you were on the property. The property owner’s responsibility to you – the duty of care – depends on what “class” of person you are.
      • Invitee: You are an invitee when you go onto the property of another by invitation. The invitation can be, and often is “implied:” the most common way to become an invitee is to walk into a store, restaurant or other place of business for the purpose of doing business with that establishment. The person who slips on the grape in the grocery store is an invitee of that store. You can be a licensee without a “business purpose” if the reason why you entered the property was one “for which it is generally held open to the public.” As we will see later, this can be important if you are injured on government-owned property.
      • Licensee: You are a licensee when you enter someone else’s property with the owner’s permission for something other than a business purpose. A typical example of a licensee is the “social guest” – such as visiting the home of someone you know.
      • Trespasser: You are a trespasser if you enter onto property without invitation or permission.
    • You need to identify the property owner’s duty of care toward you. Once you establish how the law categorizes you as an invitee, licensee or trespasser, you can determine whether the property owner could be liable to you for injuries you suffer on the property based on that category.
      • For invitees, the property owner owes them an affirmative duty of reasonable care. This means that the owner must keep the property inspected for dangerous conditions, and put in place whatever warnings and safeguards or to make such repairs that are necessary to protect the invitees. On the other hand, if the owner knows or should know of an unsafe condition on the property that could cause injury and doesn’t take precautionary action to prevent it, that would arguably be a breach of the duty of reasonable care.This duty to invitees is subject to certain conditions: it covers those parts of the property where the invitee is invited to go to (including implied invitation), and to situations in which the invitee cannot be reasonably expected to know about the danger or be able to discover it (including parking lots in situations where the owner knows or should know that criminal activity has been taking place).Going back to the grocery store slip-and-fall example, this requires the store owner to be on the lookout for hazards like liquid spills on the floor, or other items that could cause an invitee-class person to fall or otherwise suffer a reasonably preventable injury.
      • For licensees, the property owner’s duty of care is similar to that for invitees: a duty to avoid unreasonable risk of harm from a condition on the property, coupled with the presumption that the licensee will not be aware of that condition. Failure to adhere to this duty that results in injury in connection with the unreasonably dangerous condition can give rise to a premises liability claim.Note that it is not just “conditions” on the property, like open pits, swimming pools, abandoned equipment and so on that pose a potentially unreasonable risk of harm. The property owner’s activities on the property can create a hazard (for example, the owner has been pruning trees and a branch lands on and injures a licensee). Also, the property owner can be liable to you for even temporary conditions on the property that he or she did not create, as long as the owner had at least “constructive notice” of the existence of the condition.
      • Trespassers do not receive the same degree of consideration if they are injured by a dangerous condition or activity: neither will support a premises liability case for a trespasser. The only duty of the property owner to the trespasser is not to “take the law into his own hands” by purposefully or “wantonly” injuring that person.
    • You need to show that you suffered compensable harm. In Washington, premises liability-based injuries are usually physical (although in contexts other than premises liability Washington allows for recovery based on emotional harm, most premises liability cases are based on physical harm). They include the types of wounds you would expect from falls, blunt-force trauma, electric shock, exposure to hazardous materials, and more.
    • You need to show that dangerous condition or activity or the property caused the harm you suffered.

    Special considerations for premises liability claims

    Recreational use. Sometimes special circumstances can have an impact on whether you have an injury claim based on premises liability. If you are what Washington law defines as a “recreational user” on the property (generally speaking this is when the land is made available free of charge for activities like camping, boating, fishing, hiking, biking and “agritourism”), then the landowner is not liable to you for injuries you incur there unless they are the result of an intentional act or from a dangerous condition that the landowner knew about and failed to provide warnings for.

    Attractive nuisance. While the recreational use doctrine can limit a landowner’s potential liability, the doctrine of “attractive nuisance” has the opposite effect: it allows certain trespassers – children – to have a premises liability case where otherwise that wouldn’t be the case.

    The attractive nuisance doctrine recognizes that children can tend to be both naturally curious and lacking in cautious judgment, which makes some dangerous property conditions more likely to become a draw to them. Examples include but are not confined to railroads, construction sites, swimming pools, farm equipment and abandoned vehicles. Under attractive nuisance, if the landowner knows or should know that children might trespass onto the property, and is also aware of a dangerous condition there that it is unlikely children would either know about or understand the dangers of, then the landowner has a duty of care to the child to take measures to protect such children (provided that the cost of taking preventive measures is less than the risk posed by the dangerous condition).

    Attractive nuisance trumps recreational use in situations where both doctrines might apply (that is, a landowner cannot rely on the recreational use defense to preempt a premises liability claim in attractive nuisance).

    Naturally-occurring conditions. The dangerous condition on the property does not always need to be man-made. Washington law recognizes premises liability actions that arise from natural as well as artificial conditions. A good example of a natural condition is snow and ice accumulation on the property, which can become a slip-and-fall injury hazard.

    Abnormally dangerous activities. If the property owner engages in things that the law considers to be unusually hazardous, such as the storage or use of explosives or other hazardous materials or the keeping of dangerous animals, an injury to an invitee or licensee caused by this activity can result in strict liability on the part of the landowner, which is an easier burden for you to prove than ordinary negligence liability (trespassers are not eligible to make strict-liability claims based on abnormally dangerous activities).

    Government-owned property. In many situations, the doctrine of “sovereign immunity” can protect the government from lawsuits, but like many other states Washington has largely waived that defense in premises liability cases. If, for example, you go to City Hall to file some paperwork or to appear in response to a legal summons, and you suffer harm from a hazardous condition on that property, sovereign immunity does not bar you from making a premises liability claim. You must, however, follow specific procedures to pursue such an action against a state or local-level government defendant that are distinct from how you would make a claim against a private person or entity.

    Contributory fault. If a jury in your premises liability lawsuit determines that you were partially at fault for your own injury, it can reduce the amount of any damages award to you. The jury decides on a percentage basis how much fault to allot to you and to the defendant landowner; the percentage assigned to you is the percentage your award will be reduced by. Theoretically at least, even if the jury finds you 90 percent at fault you can still recover for the other 10 percent.

    Call an Experienced Premises Liability Lawyer

    You can probably see by now that making a legal claim for an injury that happened to you on someone else’s property can become complicated and time-consuming to investigate, prepare and pursue. Simply proving what the landowner knew or didn’t know about the condition of the property can require extensive pretrial discovery. You can help yourself by choosing to represent you a law firm that is already experienced with premises liability cases, so less time is spent figuring out what to do and more time and resources can be devoted to doing what needs to be done to present the strongest, most persuasive case possible on your behalf.

    At Lehmbecker Law we offer free consultations for all injury cases. Our attorneys bring more than 52 years of combined experience to representing accident victims and their families. If you would like to discuss your case with one of our dedicated injury lawyers, please call (425) 455-3186 or contact us online today.