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Thousands of people are injured everyday by slipping
or tripping and falling on someone else's property, and unbeknownst to many of
these people, they have a potential "premises liability"
claim against the owner or occupier of the land upon which they
were injured.
A
premises liability claim is a claim forcompensation for the personal injuries suffered because of the negligent maintenance, operation, or design of land or real property owned or possessed by someone other than the injured person. To recover in a premises liability case, the injured person must prove the following:
1. There was a defective condition
upon the land;
2. The defective condition upon the
land created an unreasonable risk
of harm to those upon the land;
3. The owner or occupier of the land
knew, or, in the exercise of
reasonable care, should have
known of the defective condition
and the unreasonable risk of harm
created thereby;
4. The owner or occupier of the land
should have anticipated that
persons upon the land would not
discover the defective condition
or realize the unreasonable risk of
harm created thereby, or would
otherwise fail to protect
themselves from the unreasonable
risk of harm;
5. The owner or occupier of the land
was negligent in failing to exercise
reasonable care to protect those
upon the land against the
unreasonable risk of harm created
by the defective condition;
6. The injured person was, in fact,
injured while upon the land; and
7. The defective condition upon the
land caused the injury.
The most difficult element to prove in a premises liability case is notice (i.e., the owner or occupier of the land knew, or, in the exercise of reasonable care, should have known of the defective condition and the unreasonable risk of harm created thereby).
Often times, the best evidence of notice is a photograph of the defective condition. For example, a photograph of a rusty pipe that leaked water onto a floor and caused the injured person to fall may show that the owner or occupier of land had constructive notice of the defect (i.e., had s/he inspected the land as the law requires, s/he would have discovered the defective pipe and fixed it to prevent water from leaking onto the floor below). Other times, an incident report filed by a previous victim may be the best evidence as it will show that the owner or occupier of land had actual notice of the defect (i.e., the owner or occupier of the land knew of the defective condition because someone else had previously injured themselves thereon and reported the incident to the owner or occupier of the land).
It is imperative to photograph the defect and report the incident to the owner or occupier of land as soon as possible, but be aware that the law permits the owner or occupier of the land to repair the defect immediately (effectively destroying the evidence in the process) to prevent others from injuring themselves. As such, whenever feasible, the defective condition should be photographed as close in time to the reporting of the incident as possible. With today's technology, cellular phones with built-in cameras in particular, photographing the defective condition and reporting the incident can be done almost simultaneously in most cases.