Premises Liability

“Premises liability” lawsuits involve negligence by a person or company that allowed a dangerous condition on a piece of land or in a building. In both Pennsylvania and New Jersey, “possessors of land owe a duty to protect invitees from foreseeable harm.” Carrender v. Fitterer, 469 A.2d 120 (Pa. 1983); Hopkins v. Fox & Lazo Realtors, 625 A. 2d 1110 (N.J. 1993).

A large percentage of injury lawsuits are, at their core, premises liability lawsuits. Think of a construction worker injured at a work site, an assault or murder at a hotel, the collapse of the building, or a customer falling from a height at a business. All of these cases involve questions about what the “possessor of land,” like the landlord or the commercial tenant, should have done to prevent the injury.

The first question to answer in these cases is, perhaps surprisingly: who is responsible for the land? The answer is hardly obvious. We’ve had cases in which, before we could even file the lawsuit, we had to dig deep into public records, finding shell company after shell company passing the buck to one another, including through bankruptcies and complex legal arrangements involving assignments, indemnifications, and other ways to avoid responsibility.

The second question is whether the injured person was a trespasser, a licensee, or an invitee, because the legal duties differ depending on the answer. Insurance companies stop at nothing to avoid calling people an “invitee,” even where people were plainly invited onto the  property to conduct business. This issue will always take up a lot of time and effort in a premises liability case, often resulting in dozens of pages of complicated legal briefing on what should be a common sense answer.

Then comes the big question: foreseeability. The injured person typically has to prove the defendant “knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees.” There’s no shortage of ways that insurance companies and defense lawyers claim that they had no idea and could not have known about whatever hurt the plaintiff, no matter how obvious it is. Proving this element often involves an exhaustive look into the property’s history, including a look at every prior accident that occurred there which was similar to the plaintiff’s accident, and for tell-tale signs the landowner missed that should have caused them to make the premises safer.

An example case we handled:

We represented the parents of a college freshman who, on his return home during a break, had gone to a friend’s house and drunk alcohol. He left the house with his friends to go to a convenience store and, on his way back, was electrocuted by touching the “third rail” of a regional rail line. This case was thus two premises liability cases in one: first the case against the homeowner for allowing minors to use alcohol, and second the case against the regional rail line for still having an electrified third rail years after they had been removed from virtually every other system in the country. Adding to that, we had an insurance problem, because it wasn’t clear the homeowner’s insurance would provide coverage for the service of alcohol, which would leave the plaintiff family with a claim against the homeowners personally, which was unlikely to produce any real compensation.

After extensive depositions of others who had gone to the house, we were able to prove a history of serving alcohol to minors — and to prove that this negligence was within the coverage of the insurance policy. The insurance company tendered the policy.

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