Personal Injury-Premises Liability

Brien Roche

Premises liability claims generally require proof that the owner/manager knew of a defect in the premises, failed to cure it and that caused the injury. That proof comes through investigation and discovery of the case. Human factors may be a part of that. Slip and fall cases are a large part of premises liability claims.

Personal Injury-Premises Liability Elements

Let’s look at such a case from the point of view of the four elements of a tort claim.

Duty

The first element of a tort claim is to define the duty owed by the defendant to the plaintiff. The duty may arise out of the relationship of the parties. It may arise from law. In addition it may arise from custom and practice. Also it may be assumed or imposed as stated below. For more info on the source of this duty see the personal injury page on this site.

What that duty may be is a function of the status of the plaintiff. The different statuses that may apply are that of invitee, licensee or trespasser. Each of those terms have their own meaning. You need to know what each of those means in order to determine what duty is owed to that person.

Next you need to find out what is the status of the party that is to be sued. In other words is that party an owner, an occupant or a manager.

Occupant

The Virginia Jury Instructions talk about the duty that is owed by an occupant. The term “occupant” is not defined in the jury instruction (VMJI 23.040) but an occupant includes an owner. Also it may include a tenant in some circumstances. Likewise it may include a property manager.

Under the Virginia Residential Landlord Tenant Act at Virginia Code § 55-248.13, a landlord has a duty to maintain fit premises. This would include such things as elevators and escalators. In Murphy’s Hotel, Inc. v. Cuddy’s Administrator, 124 Va. 207, 97 S.E. 794 (1919) the court said that the operator of a passenger elevator in a hotel or public building is a common carrier. A common carrier owes the highest degree of care to the persons on the elevator. However that does not mean that all owners of elevators are common carriers. Also in this case the court said there is a presumption of negligence of the property owner. The owner is at fault unless there is proof showing he is not at fault.

If an owner or occupant undertakes repairs then they have a duty to do so reasonably. Tugman v. Riverside Mills, 144 Va. 473 (1926)

Duty Cannot Be Delegated

In the case of Love v. Schmidt, 239 Va. 357, 389 S.E.2d 707 (1990), the court held that the duty of a landlord of an office building to use reasonable care to keep its property in safe condition cannot be delegated. If the owner hires a third party to perform these duties then whatever knowledge that third party has about the condition of the property can be imputed to the owner.

If work on the premises is done by an independent contractor and that causes the injury you may need to sue that party. Kesler v. Allen, 233 Va. 130 (1987)

Nonfeasance v. Misfeasance or Malfeasance

The Virginia Supreme Court adheres to the so-called “traditional view” that there is no tort liability for nonfeasance (omission) by a contractor. For instance if a cleaning company contracts to clean the bathrooms, they often put out a “wet floor” sign when the contract obliges them to do so. If they fail to do so, there may  be a basis for a tort claim. The cleaning company however having assumed its contractual duty to mop the floor and provide janitorial services, had an independent obligation to exercise reasonable care to prevent foreseeable injuries to foreseeable plaintiffs. That constitutes misfeasance. Malfeasance is a step beyond that. Kaltman v. All American Pest Controls, Inc.,  281 Va. 483, 706 S.E.2d 864 (2011); Tingler v. Graystone Homes, Inc., 298 Va. 63, 834 S.E.2d 244 (2019); Holderfield v. Thyssenkrupp Elevator Corp., 2022 W.L. 980638 (E.D.Va., 2022)

Property Managers

Does the property manager of a building have a duty that cannot be delegated as far as maintaining that property? In terms of its relationship with the owner, the property manager probably does. However the question is whether that property manager owes a duty to someone who is visiting the property. If the property manager qualifies as an occupant, as stated above, then it probably does. However the prevailing rule in Virginia is that an owner’s duty to maintain the property in reasonably safe condition cannot be delegated to a third party such as a property manager but see Milburn v. J.C. Penney Properties, Inc., et al., 2007 WL 1523528 (2007)

If a property manager is employed by the owner, he is required to maintain the premises. Failure to do so is fault on his part. Richmond and MR Company v. Moore, 94 Va. 493, 506, 27 S.E. 70, 71 (1897) For a free consultation about your case, contact us today.

If a party has a duty by law or contract to maintain property then that duty cannot be delegated. Bowers v, Martinsville, 156 Va. 497,515, 159 S.E. 196,202. As a result the manager may have a duty to keep the premises safe but that duty is owed to the owner. The property manager may still be liable to third parties if he is an occupant.

If the property manager that you’re considering suing is an individual, that individual employee could have some liability.  In Hope v. Commonwealth, 92 Va. Cir. 6 (2015), a demurrer was denied where the assertion was made that a transportation official had a duty to the driver.

Assumed Duty

In Nolde Bros. v. Wray, 221 Va. 25, 28, 266 S.E.2d 882, 884 (1980), the Supreme Court recognized as ancient learning that one who assumes to act for whatever reason may become subject to the duty to act carefully.

In the Didato v. Strehler, 262 Va. 617, 629, 554 S.E.2d 42, 48 (2001) case, the Supreme Court dealt with a medical malpractice case where one person undertakes services for another. Whether that is done for money or not, the person who undertakes the services that are needed to protect the other person or the other person’s things may be liable for injury. This liability arises if he fails to exercise reasonable care in carrying out these functions.

This applies if the conduct increases the risk of harm or the harm is suffered because the first party relied upon the undertaking. In other words, if one assumes a duty, then he has a duty to exercise reasonable care to perform. This line of thought may be applied to property managers hired by owners.  See also Kellerman v. McDonough, 278 Va. 478, 489 (2009); Burns v. Gagnon, 283 Va. 657, 672 (2012); Cline v. Commonwealth, 2016 WL 4721393 (unpublished)

Duty as to Criminal Acts

There is no duty to protect against criminal acts of another.  The reason for the rule is that such conduct cannot reasonably be foreseen.  A.H. v. Church of God and Christ, Inc., Record No. 180520, 831 S.E.2d 460 (2019).

There are two exceptions to that rule.  The first is where there is an express statement that one party has assumed a legal duty to protect another.  The second is where the duty is not assumed but rather is imposed.  That duty may be imposed where there is a special relationship.  That relationship must exist between the defendant and the person who is to be controlled. Likewise this duty to protect may arise between the plaintiff and the defendant where the plaintiff has a right to protection. The duty however only arises when the defendant could have foreseen the need to take action to protect the plaintiff from harm.  That is, the danger is either known or reasonably foreseeable.

General Duty

In RGR, LLC v. Settle, 288 Va. 260, 275, 764 S.E.2d 8, 16 (2014) the Virginia Supreme Court recognized a duty to exercise due care to avoid injuring others.  Under that case the only relationship that must exist for duty to arise is a nearness of the parties, either in time or space to place the plaintiff in danger from the defendant’s acts.

A motorist may have a claim against a farmer who allows his cow to escape from his farm onto a public road.  In Quisenberry v. Huntington Ingalls, Inc., 296 Va. 233, 818 S.E.2d 805 (2018) the Virginia Supreme Court found that a mobile hazard such as asbestos which leaves the employer’s property is not unlike livestock leaving the farm.  It is not the foreseeability of the harm that creates the duty but rather it is the proximity in time and space which puts the plaintiff in danger from the defendant’s acts.

In Quisenberry the court found that there was a duty imposed upon the employer to make sure that employees did not leave the premises with dangerous substances (asbestos) on their clothing.  Persons who are injured from that exposure may have a claim against that employer.

Notice

If you slip and fall on a liquid that is on the floor in the local supermarket, do you necessarily have a basis for a claim? You may not. You must present some evidence of how long that liquid had been on the floor. If it turns out that the liquid had only been there a short time and is there because of the actions of some other customer, you may have a problem. That is, the owner did not have a reasonable chance to see the liquid and clean it up. There may not be any negligence on the part of the owner.

Occupant Not Guarantor

The logic of this rule is that an occupant is not a guarantor of the safety of all persons on the premises. However the occupant is required to exercise reasonable care. In other words reasonable care as to those defects known or that should be known of. In a slip and fall if you can prove that the liquid had been on the floor for twenty minutes, that may be enough to make out a claim. Within that period of time it could be that the occupant should have known that the liquid was on the floor. Therefore he should have cleaned it up or placed signs to warn customers. Another theory of liability is that the occupant was negligent in that he did not have an adequate system in place for discovering the defects. In other words the negligence is systemic.

Reasonable Care

Also you may ask what is reasonable care. Reasonable care is whatever a jury says it is. However a textbook definition of reasonable care is that degree of care that a prudent person would exercise in that circumstance.

To sum up, a property owner is probably a necessary party in a premises liability case. A property manager may be a permitted party with the limits noted above. The occupant, whether it be owner, tenant or other, is probably a necessary party.

Premises Case Similar To Products Case

A premises case is similar to a product liability case. In a product case the maker should design out the defect, guard against the defect or warn about it. The same analysis may apply in a premises case. The catch in a premises case is the plaintiff must prove notice of the defect. In other words did the defect exist long enough for the occupant to be aware of it and correct it, guard it or warn about it. For a free consultation about your case, contact us today.

Codes v. National Standards

If your case involves a building code violation, that is a definite plus.  It must be kept in mind however that a property owner owes two (2) types of duties.  There is a duty applicable under the building code.  That duty or standard is simply a minimum requirement.  In addition a property owner has a duty to comply with the common law duty of reasonable care under the circumstances.  Mere compliance with the code requirement does not mean there is compliance with the common law duty.

National code standards may be relevant for two reasons. First what the occupant knew or should have known about the condition of the property.  Second, what is reasonable care as to the maintenance of the property. Friend, Personal Injury Law in Virginia, § 2.2 (3rd Edition, 2013); Virginia Electric Power Co. v. Daniel, 202 Va. 731 (1961) (referring to the requirements of the national electrical safety code); Morgen Indus. v. Vaughan, 252 Va. 60, 64 (1996) (expert testified about AMSI standards dealing with guards to prevent injuries); Norfolk and Portsmouth Belt Line Railroad Co. v. Wilson, 276 Va. 739, 745, footnote 7 (2008) (expert testimony admissible where the national and the Virginia standards coincide); Christian v. Surgical Specialists of Richmond, 268 Va. 60, 65 (2004) (expert testimony allowed where national and Virginia standards coincide).  The point to be emphasized is that there may be two (2) duties.

The admissibility of these standards may also be governed by Virginia Code § 8.01-401.1 dealing with learned treatises.  

Personal Injury-Premises Liability Breach

If the occupant failed to take steps to correct the problem, guard against it or to warn of the danger then that may be evidence of a breach of the duty to exercise reasonable care.

Causation

That breach of duty must be shown to be a cause of injury to the plaintiff.

Damage

The final element of a premises liability claim is simply that of injury or damage. The injury or damage may be the personal injury to the plaintiff.

Circumstances of Premises Liability Claims

Premises liability claims may arise from a variety of circumstances:

• Slip and falls in parking lots, sports stadiums, shopping centers, hotels, bars and restaurants ,apartment complexes, grocery stores.
• Faulty handrails or guardrails
• Falling merchandise at big box stores
• Criminal attacks at hotels or apartments
• Injuries at amusement parks or ski areas
• Collapsing decks
• Drownings
• Falls on snow or ice

If you have been injured as a result of the negligence of a property owner, contact us.

Things To Do When Injured On Someone’s Property

As is true with any type of injury there must be prompt and thorough investigation. Some basic steps to be taken are:

• Photos of the unsafe condition and surrounding area as soon as possible
• Prompt examination by engineer or other specialists.
• Interview of pertinent witnesses

Personal Injury-Premises Liability and The Duty of Property Owners

Property owners need to be aware of defects in walking surfaces and any change in elevation in the walking surface. In addition during certain times of the day a walking surface may have a glare effect. If there is a change in elevation there should at least be some warning of that impending change. For a free consultation about your case, contact us today.

Suppose you are a tenant in a large apartment building. There have been a series of crimes committed causing serious personal injury to tenants and guests. In addition the owner is aware of those crimes. However the owner takes no steps to improve safety or to warn of the problem. If you are then injured as a result of a person coming onto the premises for the purpose of committing a crime you may have a claim. It would be based upon a negligence theory. That is, the property owner knew or should have known that there was a danger. However the owner took no steps to correct or warn.

Snow and Ice Issues-Pedestrians

Snow and ice cases must be looked at from a point of view of reasonableness.  That is, has the owner acted in a reasonable fashion in terms of clearing the snow and ice.   If the conduct is not reasonable then that may be a basis for a negligence claim.   An owner may wait a reasonable time after a storm is over before removing snow and ice.

What probably makes sense is to hire a meteorologist.  The meteorologist can testify as to when the precipitation ended.  If the time gap between the end of that precipitation and the time of the fall is significant and the property owner has done nothing to make the property safe, then you probably have a case.  If the time gap is minimal, you probably don’t have much of a case.

In many instances the ice may be what is referred to as “black ice”.  Black ice implies that the ice itself is not visible. It is on a black surface.  However in some cases the ice may be on a concrete surface which may be tan or white in color.  Either way the ice may not be visible.  If the property owner knew or should have known of the presence of the ice and a reasonable time has passed since the storm which caused the ice, then the property owner may be at fault. For a free consultation about your case, contact us today.

Personal Injury-Premises Liability Defenses

The defenses asserted are either contributory negligence or assumption of risk. Assumed risk means that the plaintiff recognized that there was a risk and chose to assume it. The fact that somebody is walking on a pathway that is covered with snow and ice is not always assumption of risk. It may be if the plaintiff had some other path to follow.  If there was no other path and the plaintiff was out during bad weather out of need then any defense of assumption of risk may be defeated.

If a condition is open and obvious to the plaintiff then the defense of either assumed risk or contributory negligence may apply. The plaintiff then has the burden to show there are things outside herself that prevented her from seeing the condition or would otherwise excuse her failure. Fultz v. Delhaze America, Inc., 278 Va. 84 (2009)

In the case of falls in a store the best counter to contributory negligence is the store itself. The store has spent a lot of money getting patrons to look at their displays. They don’t want patrons looking at the floor. The Rule in a case like that may be the store wants patrons to look everywhere but the floor. In return for that the floor must be kept clear.

Some catchy phrases that might be used at trial are “When water on the floor you must do more”. Also “When you know things amiss you must stop and fix.”

For a free consultation about your case, contact us today.
For more information on premises liability see the pages on Wikipedia.