By Sharon Frankenberg,
Attorney at Law
Premises liability refers to certain situations where the owner of property is legally responsible for injury or loss to a party while on the premises. This legal situation falls under the category of negligence actions. According to Chapter 18 of Tennessee Elements of Action (West Publishing 2010), to successfully plead a claim for premises liability the injured party (“plaintiff”) must show the premises owner (“defendant”) owed a duty of care to the plaintiff. Plaintiff must show the conduct by the defendant was below the standard of care, amounting to a breach of his or her duty. Plaintiff must suffer an injury or loss proximately caused as well as caused in fact by the defendant. The owner, operator or his or her agent must have caused or created a dangerous or defective condition which caused the injury or loss. If the dangerous or defective condition was caused or created by someone other than the owner, operator or his or her agent, the owner or operator must have had actual or constructive notice of the condition prior to the accident.
As a hypothetical example, imagine Grocery Store invites members of the public to visit its cavernous place of business for the purpose of purchasing everything from kiwi fruit to lawn furniture. Grocery Store owes a duty to shoppers who are lawfully on its premises to exercise reasonable care to prevent injury to those shoppers. It does not owe that same duty to burglars who break into its store after hours to steal merchandise. Why not? Burglars are not lawfully on the premises and a duty is typically not owed to trespassers.
If one of Grocery Store’s employees accidentally breaks a bottle of cooking oil and it spills on the floor in a shopping aisle, Grocery Store must exercise reasonable care under the circumstances to prevent injury to shoppers. Actions such as warning shoppers of the hazard on the floor, putting up a physical barrier to keep anyone from stepping in the oil and cleaning the oil up immediately might constitute reasonable care. Ignoring the mess and letting shoppers slip and injure themselves would most likely be considered a breach of that duty of care. What if it was not an employee who caused the dangerous condition? If a shopper spilled the cooking oil, a person who fell and was injured by the spill would have to show that Grocery Store knew or should have known that there was a dangerous condition in its shopping aisle.
A lawsuit for personal injuries arising out of defective improvements or conditions on real estate must be brought within one year after the date of injury or damage or the date the injury or damage was discovered or should have been discovered. Any lawsuit for damages to a plaintiff’s property must be brought within three years. There are situations where the landowner may be responsible as well as the operator of a business on that land. Who must be sued is not always clearly apparent. You should always contact an attorney to get advice and assistance with the facts of your particular situation.
Sharon Frankenberg is an experienced attorney licensed in Tennessee since 1988. She is a sole practitioner who handles probate, foreclosures, landlord-tenant, collections and general civil matters. She represents Social Security disability claimants and represents creditors in bankruptcy proceedings. Her office is in Knoxville and she may be reached at (865)539-2100.