Articles Posted in Premises Liability

Pharmacist persuades a female customer to stay over night at his house.  When his wife is gone.  Girlfriend is unaware he has a wife and, indeed, is told to the contrary. Wife appears at an inopportune time.  Fight ensues.  Girlfriend gets hurt.  Lawsuit follows.  Girlfriend seeks to hold wife and husband responsible for her injuries.

Husband:  "I owe no duty to that woman."   Dinner?  "Yes."  Flowers?  "Yes."  Warm B & B by candlelight while nestled in a king-size bed playfully wrapped  in a leopard skin comforter with Rod Stewart’s "Great American Songbook Collection" playing softly in the background?  "Yes."  Duty?  "Now just a damn minute."

The trial judge disagreed and a jury popped him with a percentage of fault for the injuries for her significant injuries.  Judge Lee wrote the opinion for our Court of Appeals and affirmed.  She quickly found a duty existed, and said this on the issue of breach of duty:

i wrote several weeks ago about the lawsuit Robert Bork filed against the Yale Club. I mentioned that the some issues I had with the suit, including the request for punitive damages.

Eric Turkewitz wrote a much better post than I.  As a New York personal injury lawyer, he wrote what was wrong with the complaint filed on behalf of Judge Bork. 

The original complaint has been amended, and it still does not pass muster in Eric’s mind.  Here is his latest post that explains what was wrong with the original complaint and what the amended complaint missed.

The Tennessee General Assembly has passed a new dog bite liability statute, known as the "“Dianna Acklen Act of 2007”.

Section 44-8-413. (a) (1) The owner of a dog has a duty to keep that dog under reasonable control at all times, and to keep that dog from running at large. A person who breaches that duty is subject to civil liability for any damages suffered by a person who is injured by the dog while in a public place or lawfully in or on the private property of another.

(2) Such a person may be held liable regardless of whether the dog has shown any dangerous propensities or whether the dog’s owner knew or should have known of the dog’s
dangerous propensities.

In Lane v. Atchison Heritage Conference Center, Inc., No. 94634 (March 16, 2007),  the Kansas Supreme Court held that "mmunity from liability under the recreational use exception to the [Kansas Tort Claims Act] does not depend upon the "primary use" of the property but rather depends on the character of the property in question."  Therefore, the Court ruled that "the recreational use exception to the KTCA, K.S.A. 2006 Supp. 75-6104(o), applies when property is "intended or permitted" to be used for recreational purposes. The correct test to be applied under K.S.A. 2006 Supp. 75-6104(o) is whether the property has been used for recreational purposes in the past or whether recreation has been encouraged."

The Court then applied the statute to bar and slip-and-fall claim against the convention center which had hosted dances, card tournements, sewing demonstrations, local Bar meetings, etc.  The plaintiff in the case was injured at a New Year’s Eve Party.

Read the decision here.

The Tennessee Supreme Court has issued an opinion in Bennett v. Trevacca Nazarene University.

The summary:

"We accepted this appeal of a premises liability case to determine whether the “independent contractor rule” adopted in Blair v. Campbell, 924 S.W.2d 75 (Tenn. 1996), relieves a premises owner from liability when a premises owner provides an independent contractor inaccurate information germane to the contractor’s work. We hold that a property owner has a duty of reasonable care to provide accurate information to an independent contractor if the owner provides specific information germane to the repair after engaging the contractor. Because material facts remain in dispute between the parties in this case about what information the premises owner provided, the trial court erred when it granted summary judgment to the defendant. We affirm the judgment of the Court of Appeals and remand this case to the trial court for further proceedings consistent with this opinion."

The Oregon Supreme Court has ruled that  a state recreational use statute does not bar a claim by a plaintiff who was injured while crossing the defendant’s land after engaging in recreational activity on an adjacent property.

The facts:  "Plaintiffs and their families drove on Highway 6 to a paved turnout along the highway near the "Fisherman’s Bridge" area of the Wilson River. Plaintiffs parked their cars in the turnout area and walked along an asphalt path that is parallel to the roadway and between the road’s guardrail and a chain link fence. On the other side of the fence is a steep slope. The asphalt path and the underlying land is owned by defendant, the State of Oregon Department of Transportation. Plaintiffs and their families used the path to gain access to a footbridge that crosses the river to a riverside beach area owned by Willamette Industries and Kenneth Fan Rad. Willamette and Rad had opened the beach area to the public for recreational purposes. After swimming and relaxing at the beach area, plaintiffs re-crossed the footbridge and used the path owned by defendant to return to their cars. While walking on that path, the asphalt under plaintiffs’ feet crumbled and plaintiffs slid under the fence and down the steep slope approximately 40 feet, sustaining injuries."

An Oregon statute provides that, subject to several exceptions, "an owner of land is not liable in contract or tort for any personal injury, death or property damage that arises out of the use of the land for recreational purposes, woodcutting or the harvest of special forest products when the owner of land either directly or indirectly permits any person to use the land for recreational purposes, woodcutting or the harvest of special forest products. …"

Did Burger King have a duty to design its stand-alone restaurant in such a way to protect its in-house dining customers from being struck by a car that came through the building’s wall?

The Illinois Supreme Court  addressed this problem in the case of Marshall v. Burger King Corporation,  Docket No. 100372, ( Ill. S.Ct. June 22, 2006). The Court started its analysis this way:

"The touchstone of this court’s duty analysis is to ask whether a plaintiff and a defendant stood in such a relationship to one another that the law imposed upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff.  This court often discusses the policy considerations that inform this inquiry in terms of four factors: (1) the reasonable foreseeability of the injury, (2) the likelihood of the injury; (3) the magnitude of the burden of guarding against the injury; and (4) the consequences of placing that burden on the defendant. " [Citations omitted.]

The Massachusetts Supreme Judicial Court has ruled that a homeowner "owed a duty of reasonable care to the plaintiff relative to the storage of firearms kept in her home, to which a mentally unstable and violent person was given unsupervised access."  Accordindly, the Court reversed a grant of summary judgment in favor of the homeowner and remanded the case for trial.

The opinion has a fascinating discussion about the law of duty.

The Court said that  "there is a significant social benefit to be realized by recognizing a duty of the person in control of the premises to exercise due care with regard to the storage of guns on the premises, particularly with respect to those who have been granted regular access to it."  The Court also stated that " [a]t the very least, Kask should have foreseen that Jason [the shooter]– whom she knew had a history of violence, had recent problems with the law, and had been under psychiatric observation — might use his unsupervised access to the house to take a weapon from the basement gun cabinet, and subsequently use this weapon in the commission of a violent crime."