Oftentimes, people ask us if they can make a claim against a property owner when they are injured on their property. These injuries can occur for all sorts of reasons—slipping or tripping and falling at a grocery store or another business, stairs collapsing or giving way at an apartment complex or other business, a physical or sexual assault on a premises, having something heavy fall on you, as well as any other dangerous condition on a property that causes an injury.
These types of cases are typically referred to as premises liability claims, and you can recover for these injuries IF you prove certain things—but it is extremely important to have someone advising you that is familiar with premises liability claims, as these claims in particular have very specific requirements that must be met in order to successfully recover in Texas.
First, you cannot automatically make a recovery against a property owner simply because you are injured on their property. You must show that the property owner was negligent in some way, or in other words, that they failed to do something that a person of ordinary prudence would have done in the same or similar circumstances. In the context of premises liability, this means that there was a dangerous condition on the property, a condition that posed an unreasonable risk of harm AND that the owner or person in control of the property Knew or Should have known about that dangerous condition AND they failed to remedy it or provide an adequate warning.
As an example, lets look at a common type of premises liability claim—which is a slip and fall at a grocery store on a slippery substance—it could be spilled mustard, watermelon juice on the floor, water on the floor, or any other myriad of things. In order to prove this case you would need to show that the grocery store—through its employees—knew or should have known about the spill AND failed to do anything about it—meaning they did not clean it up nor did they put out appropriate warning signs to adequately warn customers about it. This can be proven by showing that an employee was the one that actually caused the dangerous condition—by, for example, spilling mop water on the ground and failing to clean it up or put up warning signs. In Texas, If a customer caused the spill—then you must show that enough time passed since the spill was created to allow the stores employees to detect the spill and do something about it. This can often be difficult to prove but there are several ways to do it.
For example, is there video footage of the spill area that shows the spill had been there for a significant period of time and nothing was done about it. Now, what constitutes a significant period of time will depend on the circumstances in that particular situation—was it in the main walkway of the store or in a back aisle, had multiple employees walked past it or had none seen it.
Oftentimes, we are able to locate witnesses that can corroborate the fact that the spill had been there for quite a while but the store had not done anything about it. Oftentimes we are even able to find witnesses that reported the spill to employees, but nothing was done about it.
Another way to prove the store should have known about it is by circumstantial evidence—for example, are there clear marks from multiple grocery cart wheels rolling through the spill from which it can be inferred the spill had been there a while.
There are numerous ways to prove this information, but it is important that you have an attorney that is familiar with these cases and experienced in developing the evidence so that this information is available when you make a claim.
Who was in control of the property?
But this is not all you must show when proving a premises liability claim. As has been previously discussed you must show that the person you are suing was the one that was in control of the property. If you are suing the owner, but the owner had leased the property to someone else and exercised no control over it, this could prevent a successful case and a recovery on your behalf.
What was your status on the property?
You must also show your status as a person entering onto the premises. A person entering another person’s land is either an invitee, a licensee or a trespasser. An invitee is an individual who enters another’s premises because of the express or implied invitation of the owner or occupant for their mutual gain or benefit. If you are entering a business to use their services or buy their products, you are almost certainly an invitee. You would be a licensee if you enters another’s premises with their consent but for your own benefit alone. And you would be considered a trespasser if you intentionally entered another’s property without consent. While it is possible to make a claim against a property owner if you are injured as a trespasser or licensee—it is considerably more difficult. Everything in this video focuses on what an invitee must prove, as that is most common.
Is the dangerous condition "open and obvious?"
Still yet, another issue that must be addressed in a Texas Premises liability case is whether the dangerous condition is “Open and Obvious”. The open and obvious doctrine is the result of questionable interpretations of Texas law by the Texas Supreme Court. It holds that an owner of a premises has no duty at all to remedy or warn of dangerous conditions on its property if the condition was open and obvious such that a reasonable person entering should have appreciated the danger. The defense attorneys in premises liability cases, usually hired by the large insurance companies, will argue that any condition is open and obvious…no matter how ridiculous.
The insurance companies and their attorney’s will often try and trick unsuspecting claimants into making statements that can be used against them to try and show that the condition was open and obvious—even when it was not in reality.
It is important that you have someone on your side that knows how to effectively counteract these underhanded tactics. If a property owner causes you an injury, they should be held responsible and not leave you unfairly burdening the cost of medical expenses and living the rest of your life with the repercussions
So, what should you do if you are injured on anothers property?
- Make sure you call 911 and get medical attention as soon as possible.
- Make sure that the person in control of the property or one of their employees is made aware immediately of your injury.
- Take pictures of the dangerous condition and surrounding area, whether it is a spill, boxes that fell on you, or a tripping hazard or whatever else it may be as soon as possible.
- Gather the names and contact information of any witnesses—and this would be any witnesses to your actual injury as well as witnesses to the dangerous condition that caused your injury.
- Contact a competent slip and fall attorney that handles these types of cases as soon as possible—this is especially important in premises liability cases where it is often a race to obtain and preserve the evidence needed to adequately prove your case.
Work with an experienced slip and fall attorney
A competent attorney will immediately send a preservation of evidence letter to the premises owner to ensure that any relevant video recordings are saved as well as any incident reports by the business owner or other important evidence are saved.
A competent attorney will also act quickly to find and interview witnesses and develop all the other evidence necessary to successfully pursue a claim.
Here at Samples Ames, we are experienced at pursing all types of premises liability claims. Please give us a call as we would be more than happy to have a free consultation and strategy session with you to determine the merits of your case and the best way to pursue it.