The Nuts and Bolts of a Premises Liability Claim

| May 14, 2021 | Negligent Security, Premises Liability

In Kentucky, premises liability is an umbrella term which applies to pretty much any non-motor vehicle accident that happens away from home or work. Examples include swimming pool drownings, falls, negligent security injuries, and dog bites. As outlined below, property owners are usually responsible for these injuries, even if a third party was somehow involved.

Negligent security claims are a good example. Evildoers themselves are morally and legally responsible for robberies, assaults, and other violent crimes. But landlords have a responsibility to protect their tenants. That protection includes reasonable security measures. The amount of necessary security usually depends on the type of property. A low-rent apartment complex next to a bar probably needs tighter security than a high-rent complex next to a hospital.

If the owner breached a legal duty and knew about the hazard which caused the injury, such as a security lapse, a Lexington personal injury attorney might be able to obtain compensation for the victim. This compensation usually includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.

Legal Duty

Some states assign a general duty of care to all landowners. The duty varies slightly based on the facts of the case. But Kentucky still has a distinct, three-tier system which is relatively easy to apply.

  • Invitee: If an individual has permission to be on the land and benefits the owner, the owner has a duty of reasonable care to keep the person safe. That permission could be direct or indirect. The benefit could be economic or noneconomic. Pretty much any social guest, customer, or client is an invitee.
  • Licensee: A lesser duty applies if the victim had permission to be on the property, but there was no benefit. A guest of an apartment tenant is usually a licensee. This lesser duty requires owners to warn licensees about latent (hidden) defects, such as a loose floorboard.
  • Trespasser: No permission and no benefit means no duty, at least in most cases. For example, the frequent trespasser rule sometimes protects victims who continually trespass on land, maybe to hunt or fish.

The duty of reasonable care requires owners to continually inspect the property to make sure it’s safe and immediately, or at least quickly, take care of any safety issues.

Knowledge of Defect

The legal duty only applies if the owner knew, or should have known, about the property hazard. Evidence of actual or constructive knowledge could be direct or circumstantial.

A restroom cleaning report is probably the best example of direct evidence of actual knowledge. Attorneys usually find such smoking guns during the discovery process.

Judges typically use the time-notice rule to evaluate circumstantial evidence of constructive knowledge. A leaf of lettuce on a grocery store floor is a good example. If the lettuce was crisp, most courts would say that the owner couldn’t have known about the hazard, because the hazard probably just appeared. But if the lettuce leaf is wilted, a store employee probably should have picked it up. 

Additional circumstantial evidence, like security camera footage which shows an employee nearby, is also relevant in these circumstances.

Victim/plaintiffs must prove actual or constructive knowledge by a preponderance of the evidence (more likely than not). That’s the lowest standard of proof in Kentucky law.

Possible Defenses

Assumption of the risk and the open and obvious doctrine are two of the most common defenses in premises liability claims.

Assumption of the risk often involves a “Caution: Wet Floor” or other warning sign. These signs don’t automatically protect owners. They simply make the elements of this defense easier to prove. These elements are:

  • The voluntary assumption of
  • A known risk.

In this clip, Patrick ran off the cliff because he was too stupid to read the sign. This issue, or at least a similar one, sometimes comes up in real life as well. Mostly due to age or limited English skills, many victims cannot read warning signs or understand what they mean.

Much like assumption of the risk, the open and obvious defense is also fact-specific. Legally, owners aren’t responsible for injuries if the hazard was open and obvious, like a sinkhole or an unrestrained menacing dog. Mostly due to poor eyesight, many victims can’t see such hazards, especially in low-light conditions.

Most owners have a legal responsibility to keep most visitors safe. For a free consultation with an experienced personal injury lawyer in Lexington, contact the Goode Law Office, PLLC. Attorneys can connect victims with doctors, even if they have no insurance or money. #goodelawyers