It is incumbent upon claim professionals to thoroughly investigate and uniformly adjudicate all claims and obtain specific evidence supporting all of the allegations. When handling premises liability claims, this will involve discerning whether a land owner or the party contracted to provide services to a land owner is liable for the losses being presented. Although obtaining specific substantiating evidence is crucial when processing all claims, it is arguably more important when handling premises liability claims. Because it is relatively easy for a party to make this type of claim, it requires extra vigilance on the part of the claim professional.

The duty or the standard of care owed to business invitees is higher than that owed to licensees and trespassers. Thus, land owners must exercise reasonable care in maintaining their properties. Black's Law Dictionary defines an invitee as one who is “on land of another if 1) he enters by invitation, express or implied; 2) his entry is connected with the owner's business or with an activity the owner conducts or permits to be conducted on his land; and 3) there is mutuality of benefit or benefit to the owner.” In every negligence-based or civil tort claim, determining whether a party is negligent hinges on the answers to four basic questions:

Is a legal duty owed to the injured party?
Was there a breach of the duty owed?
Did an injury occur?
If an injury occurred, is there a causal connection between a breach of duty and the injury?

If the answer to these questions is “yes,” then the land owner may indeed be negligent. However, determining a breach of duty requires careful evaluation. In making a determination as to whether there was a breach of the duty owed, the examiner must decide if the land owner's conduct was reasonable and if the lookout maintained by the claimant was reasonable as well. These factors must be weighed in order to gauge the extent of one's negligence or the degree to which one's claim may be barred or diminished by the degree of comparative fault.

A Question of Prudence

In determining reasonableness, one must acknowledge that land owners are obligated to reasonably maintain and clean their premises, which may in fact be frequented by a variety of patrons. While the specific duties performed by the land owner may be outlined in contracts, they are generally required to inspect and maintain their properties anyway. Owners must keep premises clear, clean, and free from encumbrances for which they have reasonable notice before a loss occurs.

Absent reasonable notice of a defect, land owners should not be deemed negligent as long as they perform their duties in an appropriate manner. That said, the onus is on the claimant or his legal representative to demonstrate a land owner's negligence. In doing so, the claimant must prove that constructive notice of the alleged defect(s) exists. As such, specific evidence must be supplied, or at least reasonable evidence to indicate that one should have arguably had constructive notice. While the standard upon which a jury will evaluate the facts of the case is premised on the preponderance of the evidence, it is not sufficient to simply state that such evidence exists.

The land owner may not be legally liable and claims should therefore be denied when 1) there was an absence of reasonable and constructive notice wherein no corrective action was taken; 2) the claimant cannot provide specific supporting evidence; and 3) the answer to the four questions cited previously is a resounding “no.”

To accurately determine the land owner's legal liability, one must weigh the actions of the party making the claim not only at the time of the loss, but also in the moments preceding the accident or the loss. For instance, was proper lookout maintained, and would such have allowed a reasonably prudent person to have observed and avoided the alleged defect?

Enter at Your Own Risk?

It is also important to assume that all invitees — aside from minors whose judgment and ability to reason would be age-appropriate — should be capable of interpreting the hazards associated with the types of businesses they frequent.

For example, upon entering public places like malls, one would reasonably expect dense traffic patterns. The fact that there are many people frequenting the area raises the likelihood that items may fall on the floor prior to the land owner having a reasonable opportunity to detect and clean the subject hazard, regardless of what it may be. On the other hand, when entering areas presumed to have less traffic, one might not reasonably expect to come across as many hazards, which, of course, could still exist.

Evaluating whether a party is negligent is premised on the individual facts of each loss and should, at minimum, take into consideration each of the following points:

Do witnesses with a bearing on liability exist?
Did the owner reasonably carry out duties to maintain safe conditions?
Was there a reasonable opportunity for the property owner to have constructive notice of the alleged defect?
Were the weather conditions fully considered on the date of the loss?
What were the pedestrian traffic conditions on the date of loss? At the specific time of the loss, did they have a reasonable bearing on the loss and the staffing levels?
Did the party making the claim maintain a proper lookout?
What was the claimant doing or looking at when the loss occurred?
What was the claimant's medical condition prior to the loss?
What were the staffing levels?
Was documentation obtained to support adequate cleaning, inspection, and patrolling of the premises?
Were there potentially other contractually liable parties?

While the above points are intended as a guide, it is by no means a comprehensive listing of factors to consider when evaluating a premises liability claim. It is important to shy away from solely relying on the evidence presented by the party making the claim. The best scenario is thoroughly investigating the case immediately after an accident occurs. At the latest, claim professionals should begin evaluating every aspect of a claim when it is filed. Acting in a timely fashion will ensure the accumulation of the accurate information necessary to determine liability.

Everyone will have an opinion as to how a claim should be adjudicated. However, if specific factual evidence supporting the allegations and related injuries is absent, then the party investigating and evaluating the land owner's liability may have no choice but to deny liability.

Andy Ernst, ARM, AIC, is a senior vice president with Kinloch Partners, Inc., an insurance brokerage and risk management firm. He may be reached via e-mail at andy.ernst@kinlochpartners.com.

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