DANGEROUS CONDITION ON A PREMISES
A dangerous condition is one that creates a substantial risk of injury when the property is used with necessary precaution in a manner in which it is reasonably foreseeable for it to be used. The injured party bears the burden to demonstrate that its actions were in align with the way the defendant would expect a person to behave. The injured plaintiff must not have been in an area that would be considered trespassed, or engaging in an unusual or restricted activity, and the plaintiff was exercising an adequate level of caution that would typically be expected of a person in a similar situation.
In addition, the plaintiff must prove that the state of the property which caused the injury was in a condition that would be considered dangerous, such as a wet linoleum floor or a cracked and raised slab of pavement, or an icy walkway. If an objective onlooker would consider the risk presented by the condition of the property to be “minor, trivial or insignificant,” the court is likely to reject the claim at the summary judgment stage of the proceedings on the grounds that a “foreseeable risk” of injury was not present.
WHAT IS A TRANSITORY CONDITION IN A PREMISES LIABILITY CASE?
A transitory condition is one which is temporary, where the premises owner typically will claim lack of knowledge. Due to the short time frame and the likely of the condition being removed, cases involving a transitory condition do not have as significant a need in retaining a “liability expert” as in a case involving a static condition. Rather, the injured plaintiff will be compelled to develop evidence of knowledge on the part of the premises owner through testimony or other evidence. For example, any statements that were made at the time of the incident revealing there was an awareness of the condition on the part of the defendant is critical. These type of admissions and statements made by the defendant against their interest are very persuasive when presented to a jury.
Transitory conditions, such as wet floors, do not have significant need for an expert to prove that it is dangerous. Most jurors will recognize that wet floors are slippery. It is within the common knowledge of the jury. Therefore, the effective approach by a plaintiff’s attorney is to prove its case “through” the Defendant. For example, it is likely that the the Defendant will not admit that slippery substances on the floor are dangerous. Such a response will look foolish to the jury. The plaintiff’s attorney can argue that foreign substances on the floor are inherently dangerous and therefore the defendant did not apply the appropriate standard of care.
A premises liability case involving a transitory condition may require an expert to prove the applicable procedures and standards that should have been utilized by the defendant. Such experts may be a qualified professional who can provide helpful testimony on store operating procedures, on de-icing sidewalks, or similar protocols in the industry.
In cases involving a transitory condition, a human factors expert is not necessary. Jurors know how people walk. This is common sense. However, if the case involves multiple hazards or involves a complex set of facts, then a human factors expert may be required.
WHAT IS A STATIC CONDITION IN A PREMISES LIABILITY CASE?
A static condition is one which has been present for some period of time (i.e., deviations/cracks in walkways/sidewalks; eroded/broken concrete; holes) and the owner usually cannot credibly deny knowledge of the condition. In most cases involving static conditions an expert is necessary and photographs or other documentary evidence will be available to document the condition. In such circumstances, therefore, the premises owner will either suggest the condition is: not dangerous, open and obvious to any person including the injured party; or that the premises owner was adequate in attempting to safeguard the condition.
While the injured person avoids the problems of having to prove the premises owner’s knowledge of the condition, the injured person typically will have to utilize an expert to prove the condition is dangerous and that the premises was not properly maintained (i.e., at what width, height is a crack dangerous; how slippery is too slippery, etc.). The size of the condition is a variable that must be evaluated as well.
WHAT CONSTITUTES NOTICE OF A DANGEROUS CONDITION?
Dangerous conditions known to or discoverable by a possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if he:
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not notice the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
If the offending substance was on the premises through acts of a third person, or if there is no showing of how it got there, the business will generally only be liable if it had actual or constructive knowledge of its presence.
Knowledge can be imputed on the defendant by the legal doctrine of “constructive knowledge”. The plaintiff must prove that the substance was there for a sufficient length of time, so that in the exercise of ordinary care the Defendant should have been discovered its presence
Please note that in establishing constructive knowledge, the burden of proof is generally on the plaintiff. However, in California the plaintiff may be relieved from the burden of proving constructive knowledge.The plaintiff may be relieved of the burden of proving how long a substance was on the floor if he or she can demonstrate that the site had not been inspected within a reasonable time.