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Premises Liability
'Premises Liability' refers to accidents that occur due to the negligent maintenance, operation or design of a property owned by someone other than the accident victim. This includes claims against a landlord on behalf of a tenant or against the landowner for injuries suffered by an individual who was lawfully on the property.
Premises Liability claims may involve a wide range of events that cause injury and may give rise to liability. A slip and fall due to a wet or defective floor may be actionable against a landowner or a landlord. A company responsible for the maintenance of the property may also be at fault. Other examples include claims against a contractor responsible for cleaning a property or the removal of ice or snow. Claims against a landowner or landlord for inadequate security, poor lighting or the failure to properly maintain railings, porches or stairs are also common. Each set of facts giving rise to an injury on a premises must be individually evaluated.
Summary of Illinois Premises Liability Law
More than one million people trip or fall and suffer injury each year, and more than 16,000 die as a result of such falls. 25,000 slip and fall accidents occur daily in the United States. Falls are second only to automobile accidents as an accidental cause of death according to the National Safety Council. Accidental falls account for more hospital visits than car accidents and may account for up to 21 percent of all emergency room visits according to the National Safety Council.
What is Premises Liability?
'Premises Liability' refers to accidents that occur due to the negligent maintenance, operation or design of a property owned by someone other than the accident victim. This includes claims against a landlord on behalf of a tenant or against the landowner for injuries suffered by an individual who was lawfully on the property. Premises Liability claims may involve a wide range of events that cause injury and may give rise to liability. A slip and fall due to a wet or defective floor may be actionable against a landowner or a landlord. A company responsible for the maintenance of the property may also be at fault. Other examples include claims against a contractor responsible for cleaning a property or the removal of ice or snow. Claims against a landowner or landlord for inadequate security, poor lighting or the failure to properly maintain railings, porches or stairs are also common. Each set of facts giving rise to an injury on a premises must be individually evaluated.
When Is a Landowner Liable for Injury?
For a plaintiff (the injured person) to be successful in an action against a landowner, the plaintiff must prove the following:
- There was a condition of the defendant's (landowner) property which presented an unreasonable risk of harm to persons on the premises;
- the defendant knew, or in the exercise of ordinary care should have known that the condition of his property involved an unreasonable risk of harm to persons on the premises;
- the defendant should have anticipated that persons on the premises would not discover or realize the danger, or would otherwise fail to protect themselves against it;
- the defendant was negligent;
- the plaintiff was injured;
- the condition of the defendant's property was a cause of the injury to the plaintiff.
One of the more difficult elements for a plaintiff to prove is that the defendant knew or should have known of the dangerous condition. It is not necessary to prove that the landowner knew or should have known of the dangerous condition if there is evidence that the dangerous condition was created by the defendant, its agents (employees) or their activities. In such cases, the landowner has a duty to exercise ordinary care for the safety of those lawfully on the property. As notice of a dangerous condition is often the most difficult element of a premises liability action to prove, cases involving a defective condition created by the landowner may be more likely to succeed.
Liability of Landlord for Tenant Injury
The law in Illinois draws a distinction between those injuries which occur in areas "reserved for common use" and those which occur in space leased to a tenant. Areas "reserved for common use" include hallways, stairways or the parking lot. The space leased to the tenant such as an apartment are not "reserved for common use."
The landlord must be careful to keep the premises reserved for common use reasonably safe. The law requires that the landlord have either actual or constructive knowledge of the dangerous condition which causes injury. For example, the plaintiff must prove that a railing that fails on a shared porch was not kept in a reasonably safe condition and that the landlord knew or should have known that the railing was defective. Whether the landlord had actual or constructive knowledge of the dangerous condition is again oftentimes the most difficult element for the plaintiff to prove. It is not however necessary to prove actual or constructive knowledge of the dangerous condition if the condition was created by the defendant.
What if the injury occurred not in an area reserved for common use but within the leased space? A landlord may be liable for injuries suffered as a result of a defective condition within an apartment or other area leased to tenants. A landlord must tell a tenant of a defect on the premises about which he knows or, from facts known to him, should know, and which could not be discovered by the tenant after a reasonable inspection. The landlord must tell the tenant about known defects at the time the tenant moves in. The issue of whether a landlord knew or should have known of a defective condition before the tenant moved in, is oftentimes contentious.
Liability for Falls on Snow and Ice
Given the significant snowfall Illinois receives, people regularly suffer injury as a result of the accumulation of snow, ice or melted water. As a general rule, property owners have no duty to remove natural accumulations of snow, ice or melted water from their premises. In Illinois, property owners do not have a duty to clean up ice, snow or water which is tracked into a store by customers, or to provide mats or rugs for customers to wipe their feet. A landlord similarly has no duty to remove natural accumulations of snow or ice regardless of the length of time which passes after the accumulation.
Evaluation of Location of Fall
Various model building codes and the Life Safety Code, all of which have long been in use provide guidance in assessing whether appropriate design dimensions of a walkway surface and the associated components is present. The expectation of the pedestrian must be considered as must any distractions which may impair the pedestrian's awareness or assessment of the conditions. Floor surface transitions and a change in levels such as short staircases may be of additional concern.
Elevation Changes and the De Minimis Rule
According to the American Society of Testing and Materials, a trip hazard is defined as a change in elevation in a walkway that is not a proper ramp or stairway, with a vertical face one-quarter inch or higher. Studies show that low heeled shoes typically clear the ground by one-quarter inch. A discontinuity within a sidewalk or walkway of greater than one-quarter inch can trip many pedestrians because it may be unexpected.
The law in Illinois recognizes that walkway surfaces need not be perfect. Changes in the elevation of sidewalks are oftentimes encountered where two concrete slabs meet. A city has no duty to repair de minimis defects in its sidewalks as a municipality does not have a duty to keep a sidewalk in perfect condition at all times. The law recognizes that this would create an intolerable economic burden upon the city. A review of the complete circumstances of a fall must be assessed to determine whether a condition is de minimis. Illinois courts have recognized that a one and one-eighth inch maximum height variation in light of the surrounding circumstances was minimal and held to be de minimis. Multiple courts have held that a one inch defect is de minimis. The expectation of the pedestrian encountering the condition as well as the issue of distraction must also be considered to fully assess this issue.
Walkway Impediments
The presence of any walkway impediments must be considered when evaluating liability following a fall. Access covers for sewers, drainage grates, posts and bicycle racks all present a risk to pedestrians. Many drainage grates fade visually into parking lots as they are the same color as the asphalt. The American Society of Testing and Materials recommend that drainage grates should have openings no wider than one-half inch in the predominant direction of travel. Whether a drainage grate is marked with a color that distinguishes it from the pavement must also be considered.
When may a landowner be liable for a fall on snow or ice?
Liability may be incurred when snow or ice is not produced or accumulated from natural causes, but as a result of artificial causes or in an unnatural way. A property owner may be liable for the injuries a plaintiff suffers as the result of the negligent design or maintenance of pavement which creates an unnatural accumulation. Illinois courts have found liability where a sloping surface or improperly designed entryway resulted in unnatural accumulation.
The plaintiff has the burden of proving that the accumulation of ice and snow is "unnatural", that the defendant knew or should have known of the dangerous condition and that the defendant failed to take reasonable precaution to avoid injury to others. The issue of whether or not accumulations are natural or unnatural is a question for a jury to decide.
A contract or lease agreement which requires snow removal can create a duty to remove natural accumulations. For example, if a maintenance company is retained to clear snow from a driveway and fails to do so, liability may arise. A thorough review of the terms of the contract or lease agreement is necessary to determine whether a duty is created. If a duty to remove or protect against natural accumulations of snow or ice is created by conduct or contract, then the plaintiff need not prove the existence of "unnatural" accumulation.
Unnatural accumulations of ice or snow may give rise to liability when someone falls. A variety of conditions can cause unnatural accumulation:
- Inadequate grading of land away from the building;
- Depressions or other areas which result from settling;
- Inadequate storm drainage and blocked drains;
- Inadequate gutter capability or drainage of a gutter into a pedestrian passage.
- The condition causing the unnatural accumulation and the surrounding circumstances must be considered together after a fall on ice or snow.
Standards for Stairs / Stair Design which Cause Injury
Unmarked or unidentified floor and walking surface changes are often a source of severe falls. This may include a quick step down from outside a door to a subtle height change. Extensive standards exist to evaluate whether stairs are reasonably safe. The International Building Code provides that a landing on both sides of a door way should be as long as the doorway is wide. Contrasting colors, special lighting and warning signs may be necessary to make a grade change "reasonably safe."
The Chicago Building Code provides standards for existing staircases. Chapter 13-196 addresses the minimum requirements for existing buildings. This includes the maintenance of stairways and porches. 13-196-570 states as follows:
Every stairway, inside or outside of the dwelling and every porch, shall be kept in safe condition and sound repair and:
- A.
Every flight of stairs and every porch floor shall be free of holes, grooves and cracks, which are large enough to constitute possible accident hazards.
- B.
Every stairwell and every flight of stairs, which is more than two risers high, shall have rails not less than two and one-half feet high, measured vertically from the nose of the tread to the top of the rails; and every porch more than two risers high shall have rails not less than three and one-half feet above the floor of the porch.
- C.
Every rail and balustrade is firmly fastened and is maintained in good condition.
- D.
No flight of stairs shall have settled more than one inch out of its intended position or have pulled away from supporting or adjacent structures.
- E.
No flight of stairs shall have rotting, loose or deteriorating supports.
- F.
The riser height and the tread width of each flight of stairs shall be uniform.
- G.
Every stair tread shall be sound and be securely fastened in a substantially level position.
- H.
Every stair tread shall be strong enough to bear a concentrated load of at least 400 pounds without danger of breaking.
- I.
Every porch shall have a sound floor.
- J.
No porch shall have rotting, loose or deteriorating supports.
Whether a stair or porch complied with the Chicago Building Code at the time of the fall must be assessed on a case by case basis. Expert testimony involving an is oftentimes necessary to document the manner in which a staircase or porch is defective and to associate that condition with the fall.
Maintenance of Flooring
The manner in which a floor is maintained may give rise to liability following a fall. In Illinois, mere waxing or oiling of a floor is not negligent. In order to demonstrate negligence, evidence must show that waxing or oiling was not properly performed. For example, evidence that a floor on which an individual slipped was painted with a glossy paint is insufficient to establish that the owner was negligent, without proving that a flat finish paint would have been more appropriate for a concrete floor or that the paint was improperly applied. A person simply stating that the floor is slippery, without more, remains insufficient proof that a floor was negligently maintained. A store owner may treat his floors with wax or oil or another substance in the customary manner without incurring liability unless the owner is shown to be negligent in the materials he uses or in the manner of applying them.
When a foreign substance is present on the floor and causes a fall, the plaintiff must demonstrate that the owner or operator of the store knew that the substance was on the floor. This requires evidence that the substance was either placed on the floor by the negligence of the owner or the owner's employees, that knew the presence of the substance, or that the substance was on the floor a sufficient length of time so that they should have known of its presence.
Liability of Landlord for Tenant Injury
It is typically more difficult to establish the negligence of a landlord for an injury suffered within a leased area such as an apartment as opposed to a common area. Liability may be established when a latent defect existed at the time of the leasing, the defect was known or should have been known to the landlord in the exercise of reasonable care and the defect could not have been discovered upon a reasonable examination by the tenant. It may also be established where a landlord fraudulently conceals from a tenant a known dangerous condition that may also give rise to liability. Where a landlord promises the tenant to repair the premises at the time of the leasing and then fails to do so, liability may be established as well. If landlords voluntarily undertake to make improvements or repairs on a property, he must use reasonable care in doing so.
A Common Defense: Open and Obvious
Persons who own, occupy or control and maintain land are not ordinarily required to foresee and protect against injuries from potentially dangerous conditions that are open and obvious. The law generally assumes that persons who encounter conditions such as fire, height and bodies of water will take care to avoid any danger inherent in such conditions. A condition, which may be so blatantly obvious that someone could not reasonably be expected to anticipate others would fail to protect themselves from any danger posed by the condition.
For a condition to be "open and obvious," a person must reasonably be expected to discover it and protect himself against it. That a condition was "open and obvious" and that the plaintiff failed to protect themselves against such a danger is a common defense in premises liability cases. Whether a condition is "open and obvious" is determined by the objective knowledge of a reasonable person, not the plaintiff's subjective knowledge. If reasonable people can disagree whether a condition was open and obvious, a jury may decide the issue.
Even if a condition was "open and obvious," an injured person may still have a right to compensation. There are several exceptions to the open and obvious doctrine. The first is the Adistraction exception." If the owner has reason to suspect that an individual may not appreciate the danger because they are distracted or preoccupied the injured person may recover. In that circumstance, the owner must exercise reasonable care. An example of the distraction exception involves the carrying of a large mirror which distracted the plaintiff preventing him from seeing a concrete post located near the doorway. The exception has also been applied in circumstances where the plaintiff failed to look at the ground he was walking on or where the plaintiff was playing basketball and was distracted from seeing the protruding base supporting the basket.
A second exception is the "deliberate encounter" exception. A duty to warn of an open and obvious danger exists where the owner may reasonably expect the person to encounter the danger, if the advantages of proceeding outweigh the apparent risk. The standard used is that of a reasonable person in the same position as the owner or operator of the premises.
Whether a condition is "open and obvious" involves an analysis of the conduct of the injured person, the landowner's knowledge of the condition and the response to that condition.
The Defendant's Knowledge of a Dangerous Condition
A property owner or occupier must have either "actual" or "constructive" notice of a dangerous condition to impose liability. Without evidence that the owner knew or should have discovered the condition had he been careful, liability cannot be imposed.
The injured person may establish notice if it may be shown that the dangerous condition arose from the defendant's acts or as part of his business. An example would be a patron falling after catching her foot in the slats of a pallet inappropriately placed in an aisle by a store employee. Another example is a person falling on a drink spilled by an employee of a restaurant. A complete look at the notice to the property owner or occupier of a dangerous condition is critical to the assessment of a premises liability claim.
Poor Lighting as a Basis of Liability
The issue of lighting may also be considered when evaluating whether an area is reasonably safe. The IESNA (Illuminating Engineering Society of North America) has issued guidelines on lighting levels necessary for "Absolute Minimum for Safety." Lighting is normally measured in terms of "foot candles" which is the amount of light given off by a candle at a distance of one foot. For exterior lighting standards, a light meter reading must be performed at night. Exterior areas of high pedestrian usage should be at least .9 foot candles or .2 foot candles should be provided in areas of less use. Enclosed garages should be provided with at least 5 foot candles. A digital light meter may be used to provide light level readings and the safety of the property may than be evaluated.
Whether the lighting was sufficient in an area must be assessed by a professional. The circumstances surrounding the fall and additional building code violations involving railings, stair dimension and landing dimension must also be considered.
Conclusion
The law in Illinois governing the litigation of premises liability actions is complex. If you have fallen and suffered injury as the result of a condition of someone elses property, please contact our office so that we may discuss the details of your case with you. Only after a thorough assessment of the facts surrounding your fall may a determination as to whether you are entitled to compensation be made. |
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