Proving Negligence in Premises Liability Cases: Key Elements

The owner of a property, whether it’s a business or private property, has a legal obligation, known as duty of care, to ensure the premises are safe and free from hazards. They must meet a standard of reasonable care in maintaining the property. If you suffer an injury on another’s premises due to the owner’s failure to uphold their duty of care through carelessness, negligence, or a reckless disregard for the safety of visitors, you may be entitled to compensation.

Hazardous conditions could include any number of things, including:

• Poor premises maintenance
• Slip and fall hazards
• Fire or building code violations
• Poor or missing lighting
• Improperly installed or missing safety equipment
• Hazardous conditions specific to the premises, such as poorly maintained rides at an amusement park, or improperly installed safety equipment at an ice skating rink
• Dog attacks/bites that occur on the premises.
  

To legally prove negligence in a premises liability case, however, four key elements must be present:

1. Duty of care

In order to bring suit against a defendant you must be able to prove that they are the party or parties responsible for the property’s duty of care. This could include the property owner, manager, employee responsible for premises maintenance, or a combination.

2. Breach of duty

Having established who the party responsible for duty of care is, you must be able to prove that they were in breach of that duty of care. For instance, if they:

• Knew about a dangerous hazard or situation but failed to remedy it
• Knew about a dangerous hazard or situation but failed to warn visitors about it
• Did not know about a dangerous hazard or situation, but could have reasonably been expected too
• Caused a dangerous hazard or situation through simple carelessness or neglect
• Caused a dangerous hazard or situation through purposeful action

3. Breach of duty is a direct cause of your accident/injury

You must be able to prove that your accident/injury was directly caused by the breach of duty. Some property owners may insist that your injury was caused by something else, occurred somewhere else, or is actually a preexisting condition. There are several ways to prove the breach of duty caused your injury, including:

• Physical evidence, such as a broken railing, exposed wiring, damaged pavement, etc.
• Video or photographic evidence of the accident scene and your injuries
• Eyewitness testimony
• A police incident report
• A medical report from a medical professional
• Company maintenance records
• Research
  • For example, are there previous reported incidents in existence similar to your own?
    

4. Proof of damages

Finally, you must be able to prove a direct link between the safety hazard that caused your injury and the injury itself. This proof could include:

• A report from a medical expert stating that your injuries are consistent with your accident
• Medical records in general showing how much your treatment cost, including hospital bills, continuing treatment, physical therapy, ambulance fees—really, any medical charges incurred due to your accident
• Proof of lost wages due to missed work hours, along with potential future earnings in the case of a more significant injury, which could include pay stubs/W-2s/tax returns
• Proof of pain and suffering, including mental and emotional trauma
  • This could be treatment by a licensed therapist, psychiatrist, psychologist, etc.

Other factors

Ohio is a “Comparative Negligence” state, which means that the maximum recoverable amount of damages may be reduced by the victim’s own percentage of negligence. For example, if there was a hazard on a commercial property, but you as the victim did not exercise your own proper degree of caution when coming in contact with it, the recoverable damages could be reduced. In fact, in Ohio, if the victim of premises negligence is found to be more than 50% at fault, then they can recover no damages at all.

There is also a question as to whether you, as the victim, were legally permitted to be on the property where the incident occurred. If, for instance, you are trespassing on private or even commercial property where you are not supposed to be, you are not owed the usual duty of care.

The law is a little trickier, however, when it comes to children and trespassing, which is why most property owners are required to, for instance, have fences around swimming pools, even though it’s on private property.

Hire the right attorney for the job

Personal injury lawsuits are always complex, and it can be exceedingly difficult to prove negligence in a premises liability case. For your best chance at a successful outcome, hire a premises attorney with the experience, staff, and resources to guide you every step of the way and recover the largest settlement possible.

If you or a loved one are a victim in a slip and fall accident, contact the attorneys at LaSalvia Law. We will fight to win you the compensation you deserve.