The accident happened Friday, March 2nd at a Payless Shoesource in Riverdale, Ga. The little girl and her family were shopping for shoes when a full-length mirror fell on top of her- hitting the back of her head. She was taken to the hospital shortly after the incident where she later died. The family is claiming that the mirror was not properly secured and also stated that it was very heavy, so much that they had trouble lifting it off of the 2 yr old.
Payless is working cooperatively with authorities as they investigate exactly how this tragic accident happened. The family is asking for the store to ensure all shelves and mirrors are properly secured so something like this never happens again. They plan on filing a lawsuit against Payless in the near future.
In this case, a premise liability lawsuit will be filed when the family chooses to pursue. A premise liability is a legal concept referring to a property owner’s legal responsibilities for injuries that were caused by some type of unsafe or defective condition on the property. Property owners are expected to keep a relatively safe environment, especially when their property is open to the general public. Common premise liability cases include:
- Animal and Dog bites
- Slip and fall accidents
- Dangerous property
- Negligent or inadequate security
- Swimming pool injury
- Inadequate maintenance
- Children on property
- Retail store liability
- Restaurant liability
- Water leaks or flooding
What the Injured Party Needs to Prove
Most premise liability cases are on based on negligence. In order to win a premises liability case, the injured party MUST prove that the property owner was negligent in respects to ownership and/ or maintenance of the property. Negligence, in these cases, means the property owner failed to use proper care in connection with the property.
Elements of a premise liability case can vary state to state, so always check the laws of your jurisdiction. In general, however, the injured party (the plaintiff) must prove:
- The person causing the injury (the defendant) owned, occupied, or leased the property
- The defendant was negligent in the use of the property
- The plaintiff was harmed
- The defendant’s negligence was a substantial factor in causing the harm
In the case of the Payless accident, the injured party’s family (next of kin) is claiming negligence for the full-length mirror not being properly secured to the wall. They are deeming Payless as liable for the 2 yr old’s death. Attorney Jonathan Harris of Schechter, Shaffer & Harris, L.L.P., Accident & Injury Lawyers has represented many families of premise liability cases, and says in order for the family to win their case, “they need to prove that a reasonable inspection by the store would have found this dangerous condition. It’s basic preventive maintenance that many times gets overlooked when it comes to premise defects.”
Liability Based on the Status of the Person on the Property
Liability is determined by the laws and procedures of the state in which the injury occurred. In some states, the court will focus on the status of the injured visitor in determining liability. There are generally three different labels for status:
- Invitee: Someone who is invited onto a property for a commercial purpose, such as a customer in a store. The invitation implies that the property is safe to be on.
- Licensee: Someone has permission from the landowner to enter the property, but is coming onto the property for his or her own purposes. Salesmen and other types of solicitors are examples of licensees. The landowner still must keep his property reasonably safe, but has a lesser duty to warn the licensee of potentially dangerous conditions on the property.
- Trespasser: Someone who enters the property without any right to do so. In the cases of licensees and trespassers, there is no implied promise that reasonable care has been made to assure the safety of the property. A person injured under this status will not likely be able to recover damages.
While many states require the property owner to exercise reasonable care in ownership and maintenance of the property with respects to ALL persons, other states apply the status of the visitor to determine the landowner’s responsibility.
Some courts focus on the state of the property and the owner’s and visitors actions. The property owner and occupants typically owe a duty to keep the property safe for all visitors except trespassers. Factors considered when determining the duty include:
- Circumstances that under which the visitor came into the property
- The nature of the property
- Reasonableness of the owner or occupants actions to repair or warn
- The foreseeability of the injury
Owner’s or occupants must regularly inspect the property for dangerous conditions. They must either repair the unsafe conditions or warn visitors of potential harm so they are not injured. An owner that fails to meet the responsibility of knowing of an unsafe condition and failing to warn visitors, can be held liable for the injuries that result from it.
Limitations of Recovering for Premises Liability
Most states follow the principles of comparative fault in premise liability cases. This means an injured person who is considered partially responsible for the accident cannot recover damages arising out of a dangerous property condition. A visitor has the reasonable duty to use reasonable care to keep himself or herself safe. Recovery can be reduced by the percentage of the visitor’s fault. For example, a mailman who delivers mail to homeowner and slips and falls because of oil on the front doorstep of the property (that wasn’t properly marked as a warning) could place full responsibility on the homeowner. However, if a lawyer then investigates and concludes that there was alcohol in his system at the time of the accident, then he has a likelihood of gaining a percentage of liability and could even be deemed fully responsible for his injury. Let’s say the mailman was found 25% responsible and the total damages were $10,000. In this case, he would only recover $7,500 because of his contribution to the accident.
As always, it’s important to contact a local lawyer in the state of the premise liability to determine which rules apply to your case.
The lawyers at Schechter, Shaffer & Harris, L.L.P., Accident & Injury Lawyers have recovered millions of dollars in premise liability cases. If you or a loved one was injured a result of a premise liability, please contact us.
