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.

The Supreme Court of Florida recently issued an interesting opinion. In Williams v. Davis,  No. SC05-1817 ( Fl. S.Ct.  Nov. 21, 2007) the Court initially notes that "all property owners owe a duty … not to permit the growth of foliage on their property to extend outside the bounds of the property and into the public right-of-way so as to interfere with a motorist’s ability to safely travel on the adjacent roadway."  But this case was not about foliage that extended beyond the property line but rather foliage on the property that obstructed the view of a motorist.

Here is more:  "courts must remain alert to the changes in our society that may give rise to the recognition of a duty even where none existed before. Absolute rules, while predictable in the outcomes they produce, may not be suitable to protect societal interests. This is especially true as we attempt to cope with the carnage on our highways. While a strict rule of immunity from liability for harms caused by conditions on land adjacent to roadways may have once been a practical necessity for an agrarian society and economy, it is markedly less so in Florida’s modern society and landscape. See Keeton et. al., supra, § 57, at 391. In the modern landscape it has become an inescapable fact that people rely heavily, if not exclusively, on the automobile for transportation both in rural and urban communities.  We simply cannot ignore the fact that every year highway accidents kill thousands and injure millions of our citizens, while inflicting economic costs in the billions of dollars. Under these circumstances, the dominance of the automobile and the dangers incident thereto have become a modern fact of life  that make it more likely that a dangerous condition on private property at a highway intersection may cause harm to those on adjacent roadways."

Nevertheless, the Court went on to say that "we can see little basis for imposing liability on the owner of a wooded residential lot for passively permitting the property to remain in its natural condition so long as the growth does not extend beyond the property’s boundaries. Unlike the situation in Whitt, wherein we concluded that it should be foreseeable to the operator of a commercial service station that obstructions to the vision of an exiting motorist could constitute a danger to adjacent pedestrians, we find it unlikely that a residential landowner would foresee that adjacent motorists would be endangered by the mere presence of foliage on the property."