In 25 years of civil litigation practice in Northern New York I have seen a lot of premise liability claims - many of them of the slip, trip and fall variety. As one might surmise, many arise during our long winters. In fielding calls from injured persons and property owners you also get a strong sense that there are a lot of misconceptions about how the courts view the duties of landowners and rights of the individuals invited onto their premises. This experience also guides what steps a business owner can take to avoid the conditions that lead to these mishaps, and to protect themselves, their enterprises, and the public in the process.
In general, New York law does not support a common assumption that when someone falls on your premises, the landowner or party in possession of the premises is automatically liable for the injury and any resulting expenses or losses suffered. To paraphrase the general standard: An owner (or party in possession) of premises open to the public must take reasonable steps to maintain the premises in a safe condition given the reasonably anticipated uses of/or visitors to the premises. Further, while a landowner must avoid creating or permitting hazardous conditions on the premises, she is can only be held liable for those hazards known to them, or reasonably anticipated.
On the ground this translates into getting the benefit of the doubt during a storm (think freezing rain, lake effect snow), but an obligation to take reasonable steps to anticipate and prepare for such events (think salt and sand), and to address the after-effects in a reasonably timely and thorough manner after the storm passes (think shoveling, more salt and sand!). Likewise, transient or suddenly occurring hazards (think the “spill on aisle 5”, or the banana peel on the entry stoop) result in liability only when the business owner knows about them, or fails to take reasonable steps to detect and clean them up, and warn others. While failing to address a hazard when there is actual notice of it can quickly lead to liability for a resulting injury, even constructive notice (such as a hazard that existed for so long that it should have observed, even if it was not observed) can lead to liability, without a reasonable program of inspecting for hazards, and documenting those inspections.
New York’s case law is littered with suits brought only to be thrown out before or after trial, where counsel either misunderstood, or perhaps simply tested the limits, of these basic tenets. Several such poorly conceived claims reinforce basic concepts: if you are attending an event on a frozen lake, don’t expect to hold the sponsors liable if you slip and fall the ice. Open and obvious hazards need no special warning! If you venture out while a freezing rain storm is underway, don’t expect to hold your landlord liable for a fall, even if your lease does say they have the duty to handle snow removal.
On the other hand, I’ve also learned that businesses that create or tolerate poorly designed structures or premises often pay the price in injury claims. The entryway with a leaking rain gutter above it, that allowed dripping water to create a frozen “welcome mat” comes to mind. The leaking air conditioner, that leaves a permanent puddle on a tiled floor, or the handrail that was fastened with short screws, and gave way when someone actually needed it, are other examples that led to awards to injured parties.
Following are a few lessons learned over the years, from fielding calls and trying these cases on behalf of injured parties and property owners in court:
Get insurance, and if someone gets injured, report it to your insurer promptly. Though in many businesses there is no legal requirement to carry premises liability insurance, it's reassuring to know that you have coverage to pay for potential damages and legal costs. The annual expense saved by flying without such a safety net quickly evaporates under the expense of defending against even a modest or poorly founded injury claim. You won’t recover legal defense costs, even if a legally faulty claim is ultimately thrown out, so having insurance cover them is a huge benefit.
Don’t ignore building codes. Many are designed specifically to prevent and minimize hazards. Get an objective third-party inspection when you go into new premises, or modify existing premises. Proof that regulations were ignored is usually legally sufficient evidence of negligence by the land owner.
Duct tape and bailer twine may be OK fixes in an emergency, but they are not a permanent solution. If you have to live with dangerous conditions due to an emergency, make sure you warn patrons, or curtail operations. You are better off with a short term shut-down than a major injury.
Use warning signs when dangerous conditions are not easily observable, like freshly mopped floors. Make the warnings simple and hard to overlook.
Genuine compassion and common courtesy go a long way towards heading off injury claims. Injured persons who are ignored or treated poorly often end up calling an attorney. Falls happen for all kinds of reasons, and some result in serious injury. Treating injured people, who are often as embarrassed as they are hurt, as you would hope to treated, should be a standard operating procedure, and can be done while carefully avoiding admissions of fault. While aiding the injured party, gather important information about how and why the fall occurred (think brief statements from witnesses, photos/video of accident scene).
When in doubt, get legal counsel promptly. Often an hour’s consultation charge early on can save big money and worries later on.
Following these basic concepts can help minimize the risk of injury to patrons and employees, and shield businesses from exposure to some of the everyday hazards they face, and the unique hazards of our North Country winters.