Premises liability is a form of negligence which includes injuries which occur away from home. Dog bites, which account for about a third of all homeowners’ insurance claims, falls, and swimming pool drownings are the most common kinds of premises liability claims. Other such claims include third-party crimes, like assaults, which the owner could have prevented.
Since these victims usually sustain serious injuries, they need money to pay medical bills and otherwise continue on with life. A skilled Lexington personal injury attorney can obtain this compensation in court. Additionally, a lawyer wins justice for victims. Your premises liability claim often prompts owners to put safety first, instead of profits first.
Duty of Care
Premises liability claims, like all other negligence claims, begin with a legal duty. In other kinds of negligence cases, such as car crash claims, most people have the same legal responsibility. But in Kentucky, the responsibility level varies, mostly depending on the relationship between the victim and owner, as follows:
- Invitee: Most customers and social guests are invitees. These individuals have permission to be on the property. That permission could be direct, like a dinner invitation, or indirect, like an “open” sign. Furthermore, these guests benefit the owner, either economically or non-economically. Since the relationship is close, owners have a duty of reasonable care when it comes to the safety of guests.
- Licensee: People like guests of hotel guests are licensees. Although licensees have permission to be on the property, their presence does not directly benefit the owner. Therefore, in these situations, the owner only has a duty to warn licensees about latent (hidden) defects which could cause injury.
- Trespassers: This pejorative term simply means a person with no permission to enter and who does not benefit the owner. Generally, owners only have a duty to refrain from intentional injury, like setting traps for trespassers.
If a duty of care protects the victim, the premises liability claim moves to the next stage, which is usually determining knowledge. Dog bite claims, however, work a bit differently.
These victims have additional legal options, because Kentucky dog bite law is rather complex. The Bluegrass State has a very broad strict liability law. Unless the victim provoked the animal, as outlined below, the owner could be automatically liable for dog bite injury damages.
Ironically, the broad nature of this law sometimes works against victims. Many pet owners see this provision as a law that unfairly penalizes dog owners. So, in some cases, another theory, like negligence or scienter (knowledge), might be a better idea.
Usually, knowledge of the hazard is the second element of a premises liability claim. In fall claims, the hazard is often a wet spot on the floor or an uneven walkway. Swimming pool drowning hazards include unfenced pools and lack of supervision. Assault hazards include inadequate security or burned-out lights which attract evildoers.
Victim/plaintiffs may use direct or circumstantial evidence to establish knowledge by a preponderance of the evidence (more likely than not).
Direct evidence, which might be a restroom cleaning report, repair estimate, or “cleanup on aisle seven” announcement, usually surface during a lawsuit’s discovery period.
The time-notice rule usually controls in circumstantial evidence constructive knowledge (should have known) claims. Think about a leaf of lettuce on a grocery store floor. If a victim slips and falls on a wet leaf, it probably just fell, so liability probably does not attach. The outcome is different, however, if the leaf is dry or shriveled, like it had been on the floor for some time.
Contributory negligence, in one form or another, is the most common premises liability defense. This legal doctrine shifts blame for the accident from the owner to the victim.
We mentioned the provocation defense in dog bite claims. Owners are not liable for injuries if the victim provoked the dog. In this context, provocation is an intentional, physical act. Victims cannot accidentally provoke dogs, perhaps by making a loud noise. Furthermore, provocation is more than teasing. It’s usually a physical act which is almost equivalent to torture.
The contributory negligence in fall claims is often distracted walking. In other words, the victim simply did not watch where s/he was going. The insurance company has the burden of proof and burden of persuasion in these situations. Device distraction is a good example. The insurance company must prove that the victim was using the device at the time. The insurance company must also prove that the victim was so engrossed in the device that s/he was unaware of the surroundings.
People have a right to be safe when they’re away from home. For a free consultation with an experienced personal injury lawyer in Lexington, contact the Goode Law Office, PLLC. We routinely handle matters in Fayette County and nearby jurisdictions. #goodelawyers