Transcript - PLRB



Transcript

Premises Liability Session I

Speaker: Bradford S. Purcell:  ...

Part 1

Bradford S. Purcell: I tell you what, I love premises liability, I really do. I am an attorney. I practice in Chicago. I have been litigating for 20 years and all of my 20 years I have had at least a percentage of my case load premises liability litigation and I, like I said, I truly do enjoy practicing in this field. Why? What is it about premises liability?

Well I think the catch phrase that was coined several years ago, applies more to premises liability than any other field of law. What is that catch phrase? The death of common sense. Huh? Any of you folks who do adjusting or have to handle claims in litigation involving premises liability, know exactly what I am talking about.

It is truly to practice in the field of premises liability to enter into the theater of the absurd, really. I mean every time I think I have reviewed a nutty fact pattern or something that just makes me roll my eyes, along comes another one and you folks who are on the front lines, who are taking these cases in from the claimants themselves, you know exactly what I am talking about, right?

I subscribed to several publications that analyzed premises liability litigation across the country. These are appellate court cases, federal court cases that have not only been filed but have been ruled upon at the trial level and are now made their way up to the court of appeals and I read these fact patterns and I just, I can't believe that these cases are making their way through the court system.

Let me give you just a little sampling of some of the cases that come across. OK, here's a case from the U.S. district court in Minnesota and the fact pattern goes as follows, while attending an annual arts and crafts fair, Phyllis Angleson tripped and fell over one of approximately 150 owned traffic cones placed in the street to separate pedestrian traffic from vehicular traffic, just as the city had done for years past.

Angleson had attended two prior festivals but claimed that she did not see the cone before her fall on the date of her accident. Angleson sued the city for negligence in the placement of the cones and for failure to warn of their existence. Phyllis, the cone was the warning, OK? Phyllis wants a warning for the warning and maybe a guard or security personnel to warn of the warning for the warning. Where does it end?

It's truly unbelievable. Fact patterns that you just shake your head.

[inaudible]

Bradford: It will be.

[inaudible]

Bradford: There you go. They're out there folks, they're out there. David Schisler, a delivery driver, went to a business complex to make a delivery. While Schisler got out of his truck to make the delivery, he saw a Canadian goose. The goose was still, so Schisler proceeded to the business. The goose began pecking on Schisler's head, and caused him to trip and fall. They [laughs] sued the business for premises liability, alleging negligence in failing to remove the goose!

[laughter]

Bradford: Folks, they're out there. They're everywhere. The US district court for the district of Kansas ruled a convenience store did not have a duty to warn that hot chocolate from a self-serve dispenser was hot. But they had this caveat: "when the user already knows of the danger." [laughs] When does the user not already know of that danger?

Folks, the list can truly go on and on. And those of you who practice in the area of premises liability know that all too well. It is truly a remarkable area of law, from the perspective of the fact patterns that you come across. But there are three things you can also say about premises liability law.

One is that it is a very broad area of the law. It encompasses everything from dog bite cases to your traditional slip and falls to criminal acts on property. It is a very, very broad area of the law. And for that reason, even in the time that we have this afternoon, we are not going to be able to cover every single area of premises liability law. It's simply too broad. But what we can do, and what we will do, is go over almost every category of premises liability case that you will come across, almost every single category of premises liability case.

All right. It's a very broad area. It's also jurisdiction-specific, very jurisdiction-specific. You can deal with a premises liability issue in one state, take that same issue and go across the state line, and they'll decide it in a completely different way, a completely different way. Sometimes, you can go from a jurisdiction within a state, deal with a premises liability issue, go down-state, deal with the same issue, and the courts handle it differently.

In my experience, I can go across a courtroom and they're dealing with the cases differently. It's very jurisdiction-specific. And for that reason, I cannot give you a set of black letter law that applies to every single jurisdiction across this country. It's just impossible. It's too varied.

But what we can do, and what we will do, is we will go over what the black letter law is for the majority of the states. We will also discuss where there are strong minority opinions. We will discuss those, and also where I think the trend is taking premises liability law. OK? So it's a very jurisdiction-specific topic, but we can manage it. All right?

The third thing we can say about premises liability law is that it is constantly evolving. It's constantly evolving. Premises liability law is uniquely affected by social forces.

What do I mean by that? Well, if you're dealing with a particular premises liability case in a jurisdiction, depending upon whether that legislature is pro-business or they're perspective is to restrict recovery, they're going to decide premises liability issues one way. If they're in a pro-plaintiff mode, pro-recovery mode, they're going to deal with premises liability issues in an entirely different way, to expand the ability of premises owners to collect. So it's a constantly-evolving area of the law.

I've been doing these seminars on premises liability law for the PLRB and others for about a dozen years now. And when I first started the trend was more restricting the ability of plaintiffs to recover. The law across the land in a general sense was to limit the ability of plaintiffs to recover. But I'll tell you what. I have seen that pendulum swing back, particularly in Illinois, but elsewhere too according to the opinions that I'm reviewing.

It is a situation where I believe courts in the recent cast in particular have expanded the ability of plaintiffs to collect in premises liability litigation. There are several areas of the law that we are going to discuss, defenses that were stalwarts of the insurance industry and defense lawyers that have been significantly eroded over the years up until the present time.

And so we're going to discuss the evolutionary nature of premises liability law. I'm not going to be able -- because it's constantly evolving -- I will not be able to give you a set of laws that are static, that I can tell you hey this is going to apply today, it's going to apply a year from now, it's going to apply five years from now. Impossible. But what I can do and what I will do is I'll provide you with at least the benefit of my knowledge of where the areas of premises liability laws are vulnerable to change.

And where I think the winds have changed and taking premises liability law. So even though we have a very broad topic, a jurisdiction specific topic and one that's constantly evolving. It's very manageable. But how are we going to manage it? How are we going to handle this topic this afternoon?

Well, what I propose that we do is to identify and discuss a methodology for handling premises liability claims and litigation. What do I mean by methodology? All I'm talking about is a systematic way of looking at premises liability litigation to really do two things. First, to arrive at a preliminary assessment of liability as it relates to your owner or occupier of land. A preliminary assessment of risk.

That's the one thing, the systematic, a way of looking at this case. This methodology is designed to do. Second, it's designed to identify those issues that you as the claims adjuster or you as an attorney or you handling a premises liability case. Identify the issues you need to investigate or if it's in litigation identify those issues that in discovery you want to find out a more concrete answer too.

So that you can fully develop your risk analysis. You'll get a preliminary assessment of risk, but it'll identify those issues that you'll need to complete that risk analysis. And isn't that what it's all about? It's all about, it's all about risk analysis. It's all about looking at your case and saying to yourself as you look at the facts, you look at the law applied to those facts.

Is the case I want to settle? Is this a case I want to get rid of early? Or is this the case that maybe we need to litigate? Is this the case where the risk is acceptable? That's what this methodology is designed to do. And now, how are we going to do it? What are the goals of this particular seminar? The first goal is for you folks to identify your own methodology, and you'll do that though consideration of a series of hypotheticals.

You know what I do here isn't rocket science. You folks probably do the same thing, you just don't know it. You folks who handle premises liability cases one after the other have a way at looking at these cases to analyze the risk. You're going through a checklist of questions that you need to know in order to determine whether or not your land owner or occupier has risk.

What this methodology is designed to do after you consider these hypotheticals and we discuss them as a group, I will introduce the methodology that I developed. And All I did was take the law that I reviewed across the country, find where there's the common ground and to try to synthesize it into this methodology which I have reduced to handout materials.

And everybody is going to get a handout. all right, I put a few business cards in the handout materials. Has anyone got a problem with that? Hey folks, I'm here, I'm not getting one red cent. You know how much that hurts? So if I want to put in a few cards in your handouts, you'll take them back to the office, you'll tack them on your little boards, and you use them. OK?

What a justice is a lawyer slipping and falling on his own card. That's the case I want to see, right? No, that's, shameless. I don't know how I sleep like a baby. No, everybody's going to get a handout, and what do these handouts do? These handouts contain the methodology, and what the methodology is, is really a series of four flowcharts.

Four flowcharts that are designed to condense the law into something that each of you and those of you who are supervisors under you can use in order to find out that preliminary assessment of risk. And also those issues that you need to develop in order to more fully analyze your premises liability case. The handouts contain the law that backs up the methodology. The flowcharts.

But I am not going to be here to inundate you with case citations and legislative acts, it's getting it down to the core of what you need to ask. To assess risk. And that's what these flowcharts are designed to do, and the goal is to make a flowchart such that virtually any type of premises liability case that is thrown at you, you'll be able to analyze it using that flowchart and the backup materials that lends support to the flowchart.

Also at the end of the handout materials is in an area called "practice tips". What that simply is are questionnaires -- if you get a premises liability case -- what you might want to ask your insured premises owner and occupier. Outlines for statements of claimance; documents you may want to accumulate during the claim stage. All of it designed to plug into the methodology, to get the information you need to answer the questions in the flowchart to get you into that preliminary assessment of risk.

So I'll be handing these out in a few minutes. And then we will review the methodology in the context of hypotheticals from cases that I have, and perhaps those which you have had, or are currently handling right now. The third goal of this after introducing the methodology is to emphasize trends in premises liability law. And we'll do that in the context of the methodology, but before we do that I want to tell you about one trend that you can take to the bank.

You're going to see a lot more premise liability cases in the coming years. A lot more. Why? You've got a baby boomer generation that is getting older. And they're very active. They're out and about. all right? They're in the shopping malls, you know? They're at the sporting events. And there's going to be a lot of them. And if you look at the premises liability litigation, the way their trend, you will see a lot of cases involving the elderly.

And it is only going to get more because as I say, they're not a sit down do nothing generation. They're going to be out there, they're going to be mobile. I saw the first case, I was waiting for the first case involving one of those rascals. You know, one of those scooter things? You know, tipped over a curb. You know, one of the shopping centers provide them for people to get around.

I tell you, you're going to see a whole new of law. A whole new area of law that is going to start coming to fruition and it's going to start coming in fruition very soon. OK? So that is a trend that, again, you can take to the bank.

Part 2

Brad Purcell: . OK. As I say, the first part of this workshop, what we are going to be doing is considering some hypotheticals, OK? And in the middle of your table under the evaluation forms are a series of handouts and if you could just pass those one to another.

OK, OK. Are we all passed out? OK. Are we all passed out, wonderful.

[laughs]

Bradford: Those of you at the table who have the one with the lines on it, it's the first page congratulations. You're the table leader, that's awesome. Way to go. Congratulations, yeah sure.

[laughs]

Bradford: Hey, someone's got to do it. All right, here's what we're going to do. What I've tried to do is to come up with three hypotheticals that involve three separate areas of premises liability law. We're going to be dealing with them each individually, OK? And the first hypothetical that's all we're going to be dealing with right now, so you don't have to read two and three.

We're just going to be dealing with the first hypothetical. And here's what we're going to do, read the hypothetical individually to yourselves, then as a group discuss the hypothetical from this perspective. From this perspective. What do you need to know to better analyze the liability exposure of your owner and occupier of land in the hypothetical? What do you need to know, what do you want to know from your investigation or if it's in discover what do you want the lawyers looking at?

In order for you to be able to assess what the exposure is for your owner and occupier in the first hypothetical. So read it to yourselves first and then discuss it as a group and then we'll discuss it briefly collectively, OK?

OK, let's look at our first hypothetical. It's more or less a conditional slip and fall type of incident, however it contains a few nuances. Why don't we start at this table. Just give me one or two things that you would want to know to better assess risk for your owner or occupier in this particular hypothetical. Weather conditions, feet wet, an excellent point.

And really, when you're breathing that type of a fact pattern, that's where you want to go. Obviously angling in on the natural accumulation rule. How about one other if you've got one. Excellent point, again. The type of floor surface, were there mats? Where there rugs put down in this particular vest mule? Both good points.

How about right here, just give me one or two things that you folks came up with. Origin of the wetness. OK, you have a concern about the origin of the water. Where is it from? Situation with the heating, perhaps creating condensation. OK. OK, very good points. How about right here, at this table right here? Surveillance, huh? Yeah, real big one. Creates a lot of dilemmas for premises owners. Surveillance. You know, traditionally the surveillance, especially in that area in the front of the store was put in for what?

Bingo! Shop lifting. It's shop lifting, got you to avoid, you know, situations of false imprisonment, malicious prosecution to document somebody leaving. Somebody taking something. But it has turned into a tool used by plaintive attorneys and defense attorneys alike, quite frankly. But the real dilemma it has created, because it was not formed surveillance cameras in that area or any area for capturing accidents, it's really not in the consciousness of the manager or the people running the store.

And then when the claim comes in, you know, where's the surveillance tape? Erased! Exactly, it's taped over! Oh, and the plaintive says erased, well you know there was an accident, your people filled out an accident form. I wonder why it's erased? You know what I mean? Happens again and again. Until these stores become sophisticated enough to understand that when you have an accident and you have a surveillance camera in the vicinity, that's got to be captured, it's got to be preserved until there is a case two or three years down the road.

Depending upon what your statute of limitations is. That's asking a lot, isn't it? It's become a real dilemma for retailers. A real dilemma, especially when you have a 48 hour window to get that tape or else it's looped over. An excellent point. How about right here, what did you guys come up with if anything?

What an excellent point that is. The maintenance records. As we will talk later on in this presentation, those records or the lack thereof. Really becoming a sword for the plaintive attorney and premises liability litigation. And we'll talk about that in more detail, but an excellent point. How about right here? Excellent, prior accidents at the store.

In the area where the accident is central, and of course delving into the exclaimers history. It's a professional plaintive. Both very good, very relevant inquiries. How about right behind them at this table right here? Excellent points, you want to try to narrow down the sources of this water. Is there a leakage issue, or can you isolate the source from a weather source where you have the natural accumulation available to you.

Now you can see, as we go on further and I call on each additional table, you're looking at the things you came up with and there's a lot of duplicative points. Why? Because you have a methodology. Because you're looking at these things very similarly. By analyzing the issues, you're identifying them and then you're asking the appropriate questions to ascertain risk of your particular premises owner.

I'll just open it up. Does anyone have anything else that's not been mentioned thus far? Yeah?

Speaker 2: [off-mic] Control of the area of responsibility of making and your responsibility to start looking into the doors and the vestibule of the others.

Bradford: Excellent point. Excellent point. Yeah, especially when you're dealing with strip malls, you've got building management companies. Agreements are signed, very good point. Yes sir?

Speaker 3: How long had the water been there?

Bradford: How long had the water been there? A great point, dealing with notice, obviously. An excellent point.

Anybody?

Signage, signage. Excellent. And what are we dealing with now in terms of signs?

Bingo, who said language? There you go! Right on. Hey, who's your clientele? Who are you inviting to buy your goods in your store? There you go. It's right there, you better have -- if you're marketing a particular sect your warnings better correspond to your marketing plan.

If you are in Miami, all right? And you're trying to target a community, you better have your warnings in your language they can understand, or you have some problems. When you don't want employees or if it's an employees-only door and you don't want people visiting your business as customers going through that door, make sure that door is understandable to those customers.

Starting to see the cases everywhere. Not just down in areas where there's a strong ethnic contingent of people, but everywhere. All right? Very good point.

Anything else? Yes, sir?

[off-mic]

Sure, you never know. You want to get into the claimant.

Yes sir?

[off-mic]

The shoes, always go after those shoes.

[off-mic]

Yeah, and that relates to sort of what that gentleman was referring to about maintenance forms. You want to know policies and procedure and we're going to discuss that in great detail.

OK, I think you get the sense in going through this about how you're looking at these cases. You're asking by and large the same questions to get at your risk analysis assessment.

Part 3

Let's now consider hypothetical number two, let's go through that. Read through that individually. Discuss it as a group and we'll do the same thing.

[silence]

OK, let's look at our second hypothetical. It's a hypothetical that is repeated. In fact, through many of the warehouse-style stores, the box stores if you will, across this country. Where self serve is the mantra and litigation follows shortly thereafter. Mmm?

Why don't we start back here. You folks at this table, what are a couple of the things that you looked at in this hypothetical that you would want to know to better analyze the risk of your owner or occupier?

Who set up the display? Very good point. It is not by any stretch of the imagination necessarily the store that puts up particular displays. Many times the vendors go in, they set up the displays, and you know what else they do? They sign indemnity agreements, right? Huh? You really want to look at that. Excellent point.

Anything else here? One more thing.

Again, the signage is a very, very important point in this type of case. Do they warn people to stay off the shelves? OK.

How about this table here? This one right here. Just give me one or two things.

[off-mic]

OK, there you go. Is this a situation where the person took it upon himself to put himself in a position of danger where there were easier alternatives available to him that did not present any hazard?

How about back here?

[off-mic]

Very good point. Excellent. Were there employees in the area? No one or very few want to be bothered by a "May I help you?" until they have an accident. Then it was, where was the help? Where was the "May I help you?", for crying out loud? You know, I've had plaintiffs, more than one talk about, you know, I was looking for an employee in this store for 20 minutes.

Or a half hour and couldn't find one. Have you ever timed how long 20 minutes is? I mean, granted the stores are getting bigger. You can't find an employee for 20 minutes, a half hour? How realistic is that? But for people not being able to find someone for 30 seconds is like waiting 20 minutes. You know, it gets transformed at time of trial.

And people sitting on that jury box, they sympathize with that. "Oh, yeah, I've been there." "Yeah, I've tried finding help there." You know, they bring that baggage in with them. But it's amazing to me how by and large most people do not want to be bothered with store help until litigation and then it was, "Where was the store help?" A very, very good point.

How about back here?

[off-mic]

Any ladders available? You know, the stores, it's interesting though. It's interesting though, the ladders were a tool made available to customers at the advent of this big box boom. You know, they actually had those ladders on the rollers with the side rails, three step ladders. And made them available for people to access the shelves. Well, once bitten twice shy, a few lawsuits later, you know, and all of a sudden those ladders started having "employees only."

But how much did that help? Not a whole lot. If you've got them sitting in the aisle, that "employees only" yellow written on the steps and the risers, didn't eliminate the foreseeability of the premises owner that somebody, who again was looking around for a half hour and couldn't find that employee, is going to walk on that ladder, step up and try to reach his product. With that foreseeability even with the sticker on there, the stores started experiencing liability and so now what do you see? Those ladders are largely being removed. You know, you don't see as many of those ladders cluttering up the aisles anymore because they simply don't want to make them available, because of litigation. Very good point.

[off-mic]

They can but by and large, security cameras are not in the aisles. By and large. That's changing, that's changing, but most of the stores in my experience have the security cameras stationed in the cashier areas. You know, to stop shrink. To stop their own employees from pilfering them. And also to capture shoplifters. People who leave the premises to document that particular aspect. So they don't have them in the aisles as much, but it's starting to change. OK?

How about over here, this middle table right here?

[inaudible]

Bradford: Very good, very good, yeah. Boy, now as an industry they know what happens. They know what happens, I mean they cannot play the ostrich and put their head in the sand, they know, the people do incredibly ludicrous things to get two dollars off on that ceiling fan. They will scale heights that are amazing to get two bucks off on that product. They will do it. Anything else? How about right here?

Woman: And this name is stepping in about, what state, what's contributory?

Bradford: And always are relevant, you want to know what you're dealing with in terms of the law as it relates to comparative fault, what are your open and obvious defenses in your particular jurisdiction, those are more legal versus factual, you've got to plug in the facts to form your legal defense but you have to know what your legal defenses are.

OK, I'll open it up. Anybody got anything else? We're all going back.

Man1: I got to know their procedures of restocking shelves and [inaudible] whether or not that they have property procedure going back.

Bradford: Boy, you're exactly right and again we're going to talk about that in more detail in the context of going over the methodology but that is an excellent point. Yes sir, right in back, ma'am?

Woman1: How long, how often [inaudible]?

Bradford: What is that claimant's individual history of doing these types of things. Does he continually put himself or herself in a position of parole? Have they been warned before? Good point, over here somebody had a point.

[inaudible]

Bradford: Right, again we'll talk in great detail about the policies and procedures, that's a starting point and then ending point many times.

Woman2: Had the claimant being drinking drugs, medications?

Bradford: Drinking drugs and medication, there you go. Yes ma'am.

[inaudible]

Bradford: Exactly, did they deviate in some manner from what is acceptable in the industry. Yes sir?

Man3: What were the reasonable options available to the customer, the target model where they put a little bit of flashing light with the customer service plan or a simple slip of paper that says, 'if not available go into customer service'.

Bradford: Was there a reasonable alternative available to this individual, somebody else brought up that point in the context of was there one in the display at the end of the aisle. Again, that is a very important query. Again, I think you can see how in going over this hypothetical, you're starting to ask the same questions, that is because you are thinking of these methodically. You are going to the checklist of items that are familiar with you to analyze risk in these types of situations, OK?

Let's consider the third and final hypothetical which deals with a particular niche in the law relating to criminal acts. All right, the potential liability for criminal acts on property, it is an area of the law that we will discuss later in this workshop that is greatly expanding and there are no signs in the future of it constricting in any form. It is an area of the law that presents enormous exposure to owners and occupiers of land, criminal acts on property.

Why don't we start at this middle table, what is something that you would want to know to better analyze your liability position in this case.

Man3: ...providing the security there, an outside security company or an outside...?

Bradford: Who is providing security, you being there, don't you? Is it an in-house operation or which is commonly the case, they firm it out to a security company. You want to know who was responsible for providing security and obviously you want to get a hold of those agreements, don't you, for insurance and indemnity purposes. How about right here?

Woman4: Where did the bottle come from?

Bradford: Where did the bottle come from? I think most venues these days, you won't see glass anywhere. At the theater for crying out loud many of them won't even give you the plastic bottle for your bottled water, they will pour it in a cup. Where did the glass come from? Was it something that was brought in from the outside or unlikely these days, did they get it from some vendor in the concert venue itself? How about back here?

Man4: What did the plaintiff do as to the original...?

Bradford: What did he do?

Man4: Reported, anything reported to the security and...?

Bradford: Excellent point, what did he do after that original confrontation? Did the individual reported to the authorities or what were his actions? Did he try to do anything to diffuse the situation? How about right here?

Man5: I really want two more, set with the policy, is that a [inaudible]?

Man: OK, witnesses and the policy for the sale of liquor, OK? Whenever you get into these situations, liquor is always a concern. How about right there, behind him?

Man6: Venue.

Bradford: Whose venue is, OK. Counsel location, whose venue? All right, how about back there in the corner?

[inaudible]

Bradford: Excellent point, similar type of problems, this is something that's a recurring issue relating to foresee ability, very good point. Yes sir.

[inaudible]

Bradford: Very good point, excellent, in this particular instance that were union tour of Hall & Oates, very very... back crowd, you got to watch him, you got to search him, you got the metal detectors, you got to take precautions. There are CD bunch but you do what you got to do but a very good point. All getting aside, your security precautions, what you do to protect patrons will change depending upon what your expectations are regarding the attraction. A metal band is going to attract a different crowd, you're going to have to take different precautions then you will with in a coo stick show by whoever. It is going to dictate what precautions you need to take, a very good point.

All right, I'll open it up, anybody? Yes. Criminal background of the assailant? That will become relevant, it is more relevant in the situation where an employee of the venue were to do the attacking then you really want to focus on that criminal background but its relevant in all cases of an attack. Yes, ma'am.

[inaudible]

Bradford: Very good point, they try various forms of exculpatory language on tickets, with a situation like a fight that we're dealing with here. It's a little different than your ticket at the ball part that you go there at your own risk, it's more foreseeable, you're going to get hit by a ball then plunged in the face with a broken bottle but you want to see if there's something exculpatory on any of the tickets. Anybody, yes sir.

Man6: [inaudible]

Bradford: OK, re-entry rule, where did the person go, what were the circumstances surrounding his return, all relevant inquiries to analyze risk. Anything else? Yes, sir. I am sorry.

Man7: [inaudible]

Bradford: OK, yeah, and that again with security contracts, promotional, sometimes you have a promoter, I mean the venue, the actual venue can be very low on the packing order because they hire people to take care of things like security. They hire people to make the arrangements so that it's a safe concert.

They farm all that out hopefully it's done through written agreement. And hopefully in those written agreements there's the appropriate insurance clauses and indemnity clauses. You know, I think again once bitten, if they found liable they're going to take the precautions, you know? If they get hit once, they're going to revisit those agreements once bitten twice shy is what I was trying to say. Yeah, man?

OK, yeah, the venues lay out. Again, all relevant inquiries and again I think you can see in listening to the commentary, it is very similar in terms of your own analysis. You're asking the same question. Why? Because you each have a methodology for analyzing these cases. And you're asking, you're trying to find out the answer to the same issues. All right? You all have your own methodology.

Part4

What I would like to do now is to introduce my methodology.

And I think you will find that my methodology asks the same questions as the questions you have been asking. What I've tried to do, though is to try to put it in a recognizable format. Not only for yourselves, but for others who you may supervise under you. So with that let's turn to the methodology. Can everyone read that?

[laughs]

Bradford: Of course you can, god it's useless. What I do first in analyzing the premises liability case. The starting point for me is duty. It is a duty analysis. Why? Why start with duty? Because it is only after I'm able to determine the level of conduct that my owner and I could rise to, that I can know if they violated or breached that level of conduct. I have to know what they had to do in order to escape liability to determine if they escape liability.

Now what is duty? What is the duty analysis? It is classification of your entry. That's all the duty analysis is, classification of entry. Now what do I mean by that? Well, most of you and certainly those of you who can the premises liability cases with regularity are familiar with the classification system of invitee licensee and trespass. That's the classification system.

And depending upon what classification your entrant is will dictate the duty owed to that injured entrant. What is the classification? all right, having said that the three pronged classification system of invitee licensee and trespasser. Having identified that classification system I will tell you now that the majority of states have abolished that three pronged classification system.

They've done away with it. Why? Because trying to decipher whether a particular entrant is an invitee or licensee just created a whole body of paella law needlessly according to many legislatures. Needlessly, why go through this intellectual exercise of trying to fare it out who's a licensee and who's an invitee. It didn't make sense, so most jurisdictions have done, they have combined those two classifications.

They've combined them into one. And they've given the same duty. Trespassers are dealt with differently as we will discuss, but many have combined the invitee licensee classification. Let's look at them briefly. The springboard inquiry is whether or not the plaintive had permission, that's the key, from the owner at the time of the occurrence to be on the a portion of the premise where the accident occurred.

That will fair it out whether you're dealing with an invitee and licensee on the one hand, or trespasser on the other. Permission, and notice that there's inquiries in this single inquire at the time of the occurrence. Someone could be on the premises during business hours stay there after business hours and they've just been transformed from an invitee to a trespasser.

At the time of the occurrence on a portion of the premises where the accident occurred. You can enter a restaurant and you're there and you're there with the implicit invitation of the premises owner. all right? You walk through that inquire only door, and that's where your accident happened you've been transformed into a trespasser. So permission, that question of permission contains several inquires within the individual condition question.

All right, let's analyze the cases. Though the person had permission to be out on the property, all right? And let's analyze it from the perspective of a state that still clings to the three pronged classification system. What we're not trying to do is to determine whether or not you're dealing with an invitee or a licensee. OK? And the first question that is asked to determine which of the two you're dealing with is did the owner invite the plaintive on the premises for the benefit of the owner?

Is that why the person is on the property? Is it a customer there with the implicit invitation of the retailer to buy goods for the benefit of owner? OK? For the economic benefit or some other benefit to the owner. If it is, they're an invitee and the duty will correspond to that classification. But you can see how that kind of an inquire can get a little muddy. There's lots of shades of gray.

You get a babysitter on your property, well they're there certainly for the benefit of the owner. They're looking after your kids, but you get compensated. There's a mutuality of benefit, all right? Invitee licensee, most jurisdictions say that is an invitee. Likewise a repair person. They're coming on your property for your benefit. They're doing repairs at your house but they're getting paid for it.

Again, the mutuality of benefit. Most say that is an invitee. How about the child who comes onto your property simply to play with your kid? Well, there's a benefit there. If you're a mom or a dad and your kids are driving you crazy, right? You know, they're keeping your kid occupied so you can do whatever, but they're there for their own benefit as well obviously. Invitee or licensee? Most say licensee.

The person who comes to your house for business, that's a licensee in most instances. The mailman, you can see how this can be nuanced to death, right? And that's why most jurisdictions have said, enough. Enough! We're just going to deal with people who have permission to be on the property the same. But in those jurisdictions that claim to the distinctions of licensee and invitee, that is the primary question that is asked. For who's benefit is that person on the property?

There's also a question if the plaintive was a member of the public on the premises for which the land is held open to the public. In other words, if you're on a crosswalk and an accident happened, you're an invitee. You're there where you should be. If your kid's on a playground, they're there where they should be, OK? But if the accident happens off the playground, if a kid scales a fence onto land that is not supposed to be occupied by people, and there's signage, that person is actually a trespasser in that particular instance. But if you're on the property as a member of the public for the purpose for which that land is open to the public, you're an invitee. OK? All right.

What's the difference between the duty? In those states that say there are trespassers and there are licensees, what's the difference between the duty owed? One word - one word distinguishes the two: inspection. That's the key. Because if you're on the property as an invitee, you as the owner or occupier of that land have the obligation, the duty, to warn and protect people on the property from dangerous conditions that you know about, and that would be revealed through a reasonable inspection. OK? -- and that would be revealed through a reasonable inspection.

If you're a licensee, that duty's downgraded. You're only responsible for warning and protecting licensees from the hazards that you know about. You don't have knowledge imputed to you by an inspection. You just got to warn them about the hazards that you know about. That's the distinguishing feature between licensee and invitee as far as duty is concerned.

OK.

Part 5

Brad: Let's talk about trespassers, because, folks, this is an area of the law that illustrates a point I made earlier on in my introductory remarks about the erosion of defenses available to owners and occupiers. You know way back when, if you were a trespasser on someone's property, and you got injured, what was the duty owed to that trespasser?

Audience: Not to set a trap for them?

Bradford: It was...way back when it was nothing. You're a trespasser, you're violating the law, you know. Sorry, don't trespass. That was the law! My, how things have changed. Holy Cow. Let's look at how they've changed. What did they do first? OK.

They said, well, yeah, trespassers, no duty. But wait a minute -- what if the owner or occupier had an agent or employee who actually saw the trespasser. They actually saw him on the land trespassing. Are we going to say that person can turn a blind eye to the hazard that awaits the trespasser? We're not going to do that. We're going to impose a duty if they see, if they have actual notice of the trespasser, to warn about dangerous objects, instruments, conditions on the land.

OK, you can rationalize that, right? OK, that makes sense. Then we get into the area of constructive knowledge, OK? Well, they may not actually know, but what if they should have known? Well, how should they have known the trespasser was on the property? Three ways: first, the appearance of the property. The old beaten path, the garbage that's in a certain area of the land, that gives it away. Hey, people are walking through this property constantly, all right?

There is a should-have-known knowledge of the one trespasser who injures himself or herself on the accident date. Why? You should have known that person was there. Why? Because there's a path that tells you people are going there constantly. So there's a duty of reasonable care. And if that person deviates from the path, then the duty is back to no duty or some other restricted duty.

Another way that you can have constructive knowledge: prior experience. Prior experience. Even though the condition of the land doesn't give it away that people are trespassing, if you see people trespassing continually there, you're going to have knowledge of that one trespasser who does it on the date of the accident.

Prior experience. Here's a quick illustration of that in a case I had. You know how you have those traveling carnivals or on Memorial Day and the July 4th weekend, they come, they set up shop, you know, and they inevitably put up one of those devices, one of those rides that turns the kids upside down. Right? And if you're standing near one of those things, you'll hear the clink of change cascading down as they turn the kids upside down.

And you know what else you'll see? You'll see the carnies scooping it up, you know? It's kind of their Starbucks tip. And you know who else sees it? The kids in line see it, right? And they want a little piece of the action as well. So they go, and they're darting under the rope or whatever guard is there, if any, and on this particular day in this particular case, the kid went down, scooped up the quarter, and here comes the cage of that machine. Boom! Killed him.

[inaudible]

Bradford: Yeah. And the whole argument was, was that kid a trespasser? There was a rope there. It did say, "no one beyond this point". But the testimony was that people who ran the ride continually saw a flow of kids going under and breeching that rope. Now, most of these places where the rides turn the kids upside down, you'll see barriers. They'll set up gates that make it impenetrable for kids to walk under.

The third way you can have constructive notice, OK, the third way is through prior accidents. Doesn't matter if there's anything about the character of the property that reveals trespassers, it doesn't matter if they have no knowledge of an influx of trespassers, prior accidents can impute notice of a trespasser elevating the duty owed to that trespasser to reasonable care.

The famous Illinois case of Lee vs. CTA was what brought rise to that in Illinois. That case involved a gentleman who was visiting Chicago. And you know how they have the elevated trains? Well, he was there, he was partying all night, got completely hammered, completely hammered, but had the presence of mind, he knew what train he had to get on to get home. And he went, he staggered to that train. But before he got on that train he needed to relieve himself. OK?

So he walks beyond the station into the yard where they keep the train cars, and walks past numerous signs warning him, "Do not Trespass," "Danger High Voltage," walks right past them. Cannot read, nor speak English, OK? He goes into an area that has railroad ties situated such that it makes it almost impossible to traverse, to discourage people from going there.

Amazingly, he's able to navigate across this area of railroad ties, and for reasons unknown, he picks his spot to relieve himself. Unfortunately for him, it was the third rail, which is the energized rail. He was electrocuted. What a way to go!

[laughter]

Bradford: How do you explain that one? Well, their lawyers must have done a good job of explaining it, because the Estate of Lee is about $6 million richer now. Yeah! And the CTA said, now wait a minute. This guy was a trespasser. There's no beaten path, there's no people flowing in and out of this area.

What the plaintiff's attorney did however is they researched 25 years of history in this area and found 12 accidents. And the court said those twelve accidents put you on notice of Mr. Lee. Those are enough prior accidents to put you on notice.

And you can feel the frustration of these premises owners and occupiers with respect to law like that. Hey, we put up the signs! You know? We did what we were supposed to do! No, no. No international signs.

You know, how they have the big red circle with the line going through it? Well, now if you go to the railroad yard, you'll see those international signs, won't you? They have the stick-figure drawing and then the big "NO!"... Actually you won't see that. It was a suggestion that I offered them, and they turned that down. No, I guess you can. I don't know.

But you can feel the frustration. Because they took what was once a stalwart defense, if you're a trespasser there is no liability. Or if you're a trespasser the liability is simply to avoid willful, wanton misconduct. They took that concept and it's been completely gutted. Such that if the jurisdictions follow these exceptions, the slice of pie of trespassers, whose duty is none or simply to avoid willful wanton misconduct, is very, very slim.

That's the duty analysis.

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download