Articles Posted in Premises Liability

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."

Here is the latest premises case involving freshly fallen snow.

In Clifford v. Crye-Lieke Commercial, Inc., No. M2005-00376-COA-R3-CV (Tenn. App. M.S. July 11, 2006), Judge Koch and his colleagues affirmed a grant of summary judgment in favor of the defendant in a slip and fall case involving freshly fallen snow.

The holding:

Here is a great opinion out of California that does a nice job of handling the “causation” issue in a case against a security guard company that is alleged to have failed to provide proper protection to a c-store employee.

The case is Mukthar v. Latin American Security Company, B183968 (Cal App. 2nd Div. 5/8/06).

An excerpt: “We disagree with the trial court that it is conjectural whether a “security guard could have prevented the attack on the Plaintiff.” The issue is whether it is a question of fact whether the woman would have struck Mukthar in the face, if an armed, uniformed security guard, equipped with a baton and handcuffs, would have stood next to Mukthar. (There is no dispute about the fact that the guard’s station was at the door, where Mukthar was standing when he was struck.) We think the inferences are not evenly balanced on this issue. It is more likely than not that the woman would not have hit Mukthar in the face in the close proximity of an armed guard who had the ready means at hand to respond physically to violence. Be that as it may, it is not for us to decide this question of fact, which is consigned to the trier of fact.”

You have undoubtedly heard about the claim against a Benihana restaurant where a man allegedly died because he was hit in the face by a shrimp. The jury did not hold the restaurant liable.

These were the facts according to the article at www.law.com: “On Jan. 27, 2001, Mr. Colaitis, his wife Jacqueline and his two sons and others went to the Munsey Park location of the popular eatery to celebrate one of the boy’s birthdays. According to testimony given by Ms. Colaitis, the sons, Christos and John Alexander, and at least two other members of the dinner party had been struck and burned by pieces of food tossed by the unidentified chef. After the second burning, Mr. Colaitis asked the chef to stop. Instead, the chef allegedly flung one more piece of shrimp at Mr. Colaitis’ head. Jerking away from it, he wrenched two vertebrae in his neck. He had the first operation six months later.” Mr. Colaitis later died, allegedly from complications of the neck injury.

The only thing my experience tells me about hibachi-style restaurants is that they never have a table until you have had at least one drink. Then, when you walk behind the curtain, there are lots of empty tables.

When a employee is working on the property of another and is injured there is always a fight over whether the employee can sue the property owner who hired the injured person’s employer to perform the work.

Here is a case out of California that the issue this way: “when, if ever, is a landowner that hires an independent contractor liable to an employee of that contractor who is injured as the result of hazardous conditions on the landowner’s premises? Specifically, in this case we must decide whether a carpenter employed by an independent contractor that installed scaffolding for workers who replaced asbestos insulation in an oil refinery facility
may sue the refinery owners for injuries caused by exposure to asbestos, when it is claimed that only the refinery owner knew the carpenter was being exposed to a hazardous substance.”

The 33-page opinion gave rise to this result: “a landowner that hires an independent contractor may be liable to the contractor’s employee if the following conditions are present: the landowner knew, or should have known, of a latent or concealed preexisting
hazardous condition on its property, the contractor did not know and could not have reasonably discovered this hazardous condition, and the landowner failed to warn the contractor about this condition.” [Footnote omitted.]

The Vioxx litigation is heating up in a public way again.

There is a trial in state court in Texas involving the death of a 71 year old man – he allegedly took 25 mg of Vioxx daily for seven days sometime in the last 30 days before he had an MI. The trial starts January 24

The first federal MDL trial that was mis-tried in Houston will be retried in New Orleans on February 6.

“If you have to go to the bathroom, you have to go, water on the floor or not.” That comes to us from Judge Susano, writing a concurring opinion in a new slip and fall case out of East Tennessee.

The incarcerated plaintiff got up at 1:00 A.M. to use the bathroom, slipped and fell and was seriously injured. He alleged that he fell because of water that was leaking into and accumulating on the floor in the room he was confined. There is no doubt: both the Defendant and the Plaintiff knew the water was there. The trial judge split the fault 50-50, but the Court of Appeals reversed, holding that the County was 100% at fault. The Plaintiff knew about the water but, in the words of Judge Lee the plaintiff “had little, if any, choice in encountering the risk of walking on a wet floor, a dangerous condition caused by the action of the Defendants. Obviously, [Plaintiff] had no choice but to remain in his cell and could not
voluntarily leave the premises.” Read Judge Lee’s majority opinion here.

Judge Franks dissented, holding that the evidence supported a 50% fault allocation on an assumption of risk analysis.

The New Jersey Supreme Court has held that a plaintiff is entitled to a res ipsa instruction in an case in which an automatic door unexpectantly closed and caused injury. Because of that determination, the plaintiff was entitled to get by a summary judgment motion and have a jury decide the case.

More precisely, the Court put the issue this way: “whether the doctrine of res ipsa loquitur permits a jury to infer, based on common knowledge, that a supermarket’s automatic doors ordinarily do not malfunction and close on a customer unless negligently maintained by the store owner, or whether the res ipsa inference is preconditioned on expert testimony first explaining the door’s mechanics.”

The case arose from a malpractice action against an attorney who filed a premises suit on behalf of the plaintiff but allowed the case to be dismissed because of a failure to respond to discovery requests. When the plaintiff discovered the dismissal, she sued her attorney.

There has been a lot of talk about the decision of the Tennessee Supreme Court in the case of West v. East Tennessee Pioneer Oil Co.; even the Tennessesan has weighed in with an editorial.

The Court held that convenience store employees owe a duty of reasonable care to persons on the roadways when the employees sell gasoline to an obviously intoxicated person and / or assist the driver in pummping gas into his vehicle.

An employee of a c-store refused to sell Tarver beer because he was too intoxicated. Then, some level of physical assistance was given to Tarver to purchase $3.00 worth of gasoline for his vehicle. Tarver left the seen, drove 2.8 miles, and hit the plaintiffs’ vehicle head on, causing both plaintiffs’ serious injuries.