Articles Posted in Premises Liability

Stripper allegedly kicks patron in the head.  Strip joint manager says dancer kicked him after he "violently slapped … her buttocks."   The stripper did not return calls to  WPTV, the Florida TV station that reported this story.   Patron claims permanent injury and sues strip joint. 

There is no indication whether the patron is married or, if so, whether his wife filed a loss of consortium claim.

No, Jeff, the WPTV article does not state  the stripper’s home number. 

"Yeah, the facts demonstrate a Shoney’s buffet of negligence, but there is no proof that any of that negligence caused any harm.   So what?"

This case out of Illinois is a classic example.  Russell was found severely injured at the bottom of some steps.  When found he said "I fell over the railing."  He died several weeks later.  There were no witnesses to the fall.

The stairs were dripping in negligence.  Even negligence per se.  But the case was dismissed, and the dismissal affirmed on appeal.

I write a quarterly column on tort law for the Tennessee Bar Journal.  The  column for the May edition of the publication discusses Tennessee’s recreational use statute, Tenn. Code Ann. §70-7-101 et seq,

An excerpt:

The Tennessee Supreme Court has interpreted the recreational use statute as one that gives rise to a defense to liability that requires a three-pronged analysis to determine the applicability of the statute: “(1) is the defendant a ‘landowner’ under the statute; (2) is the activity alleged a recreational activity as defined by the statute; and if so, (3) are any of the statutory exceptions or limitations to the immunity defense applicable?”  [ Footnote omitted.]

CNA has issued a white paper titled "Slip and Fall Control Techniques for Commercial Real Estate Owners."    The report indicates  that more than one million people are injured each year in slip or trip and fall incidents and 16,000 people die from falls. 

CNA adds this:

With the aging baby boomer generation, the size and scope of this issue is expected to grow significantly. The National Floor Safety Institute (NFSI) estimates that between 2005 and 2020, the number of seniors in the U.S. will increase from 35 million to 77 million. Statistically, seniors are far more likely to experience
a slip-and-fall accident. For those that are injured, the cost of treatment and recovery time is significantly greater than the average for non-seniors.  According to the American Academy of Orthopedic Surgeons, these types of injuries are also the leading cause of hospital admission for older adults.  [Footnotes omitted.]

The U.S. Supreme Court has issued the opinion in Wyeth v. Levine,  the product liability case against the manufacturer of Phenergan.  Wyeth appealed from an adverse jury verdict saying that Levine’s failure-to–warn claims were pre-empted by federal law because Phenergan’s label was approved by the FDA.

The USSC held that federal law did not pre-empt Levine’s claim that Phenergan’s label did not contain an adequate warning about the IV-push method of administration.

Read the opinion here

In slip and fall cases in Tennessee, one must either prove that the defendant created the condition or knew or should have known about the condition.  The latter may be proved by showing a pattern of conduct,  a re-occurring incident, or a general or continuing condition indicating the dangerous condition’s existence.   Blair v. West Town Mall,  130 S.W.3d 761 (Tenn. 2004)

But Alaska has a much more pro-plaintiff rule in grocery (and presumably all retail) store cases. Its Supreme Court  recently  ruled that "actual or constructive notice of a hazardous condition is not an element of a prima facie case in an action against a grocery store owner in a slip-and-fall case."

Here is a brief summary of the Court’s ruling and rationale:

The Tennessee Court of Appeals has affirmed an en banc ruling of the Tennessee Claims Commission and ruled that the the State was liable for damages suffered by a college student as a result of being beaten after she left a parking garage on the University of Tennessee campus.

To reach that result, the Court first held that the McClung decision was applicable to the State of Tennessee.  The Court then examined the evidence and determined that the plaintiff met the burden of proving that "(1) that there was a negligently created or maintained dangerous condition on state controlled real property; (2) the risk was foreseeable; and (3) that notice was given to the proper state officials at a time sufficiently prior to the injury for the state to have taken appropriate measures."  Finally, the Court found that legal cause was present under the facts.

The decision is a nice reminder of what a plaintiff must prove to impose liability on a premises owner for failure to guard against criminal conduct by third persons.  Read the opinion here.