Articles Posted in Premises Liability

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.

This opinion by Judge Koch does a great job summarizing the “slip and fall” law as it exists in Tennessee. This decision does not include a discussion of the so-called “method of operation” theory; that particular topic is addressed in a recent decision of the Tennessee Supreme Court.

If you read these two opinions you know what you need to know about this area of the law.

There is a change coming in fire safety codes – sprinkler systems will now be required in nursing homes, certain nightclubs and 1-2 family dwellings. The changes were adopted by the National Fire Protection Association and go into effect August 18, 2005. You can read about the changes in this article.

Here is the press release, with links to the changes themselves, from the NFPA.

The Tennessee Supreme Court has released another important tort opinion, Biscan v. Brown.

This opinion examined several important questions, including “whether an adult who hosts a party for minors and knows in advance that alcohol will be consumed has or may voluntarily assume a duty of care towards the minor guests.” The Court held that the defendant adult host had such a duty of care even though he did not furnish any alcohol.

The Court also held that the “trial court did not err in excluding evidence regarding the minor plaintiff’s prior alcohol-related offenses and her prior experience with alcohol and that the trial court did not err in determining that the plaintiff’s sister was not at fault as a matter of law pursuant to Tennessee’s statutory shield for furnishers of alcoholic beverages.”

In Blair v. West Towne Mall, 130 S.W.3d 761 (Tenn. 2004), the Tennessee Supreme Court held that plaintiff may prove that a premises owner had constructive notice of the presence of a dangerous condition by showing a pattern of conduct, a recurring incident, or a general or continuing condition indicating the dangerous condition’s existence. This decision is an express adoption of what used to be called the “method of operation theory” of proving constructive notice. The owner, a third person, or nature may cause the condition. You may read the text of the opinion by clicking here.

I do not like phrase “method of operation theory;” it sounds as if the defendant must knowingingly engage in practices that create a risk of harm. That is simply not correct.

The better label is the “reoccurring risk of injury theory.” In other words, plaintiff must demonstrate that defendant, a third person or nature regularly created some condition that posed a risk of injury to third persons. For instance, a plaintiff who fell in a grocery store could met her burden of proving notice by proving that she slipped on a liquid substance that being given away for test consumption as a store promotion several isles away. She could prove actual notice of the substance on the floor, true constructive notice, or “risk of reoccurring injury” notice; i.e. that when the store had such give aways it routinely had spills nearby with such frequency that constructive notice should be found by the factfinder.