Premises Liability Lessons
There are ways to protect yourself from liability lawsuits filed by
customers who get hurt while visiting your store. But first you need to
understand what your liabilities are
BY WILLIAM H. DONAHUE JR.
Your customers are what many state laws refer to as "invitees."
You owe them what the legal profession calls "a high duty of care"
to protect their safety while they're in your store. If that duty of care
is not met and a customer is injured, he or she can sue you for damages
including pain and suffering, medical bills and lost wages. A single
lawsuit by a seriously injured customer could wipe out your business even
if you have insurance.
As a retailer, there are two ways to protect yourself. You have to clearly
understand what the law requires and the duty the law imposes on you as
a business owner. Second, you have to be adequately insured. We'll discuss
your duties and responsibilities this month, while a later column will explain
how to choose insurance to protect yourself.
The body of law applicable to most personal injury claims is the law of
negligence. Negligence law determines when you are responsible for someone
else's injury and must pay them some kind of compensation.
The law starts with the premise that when you engage in certain kinds
of activity, you have a duty to use reasonable care to keep from hurting
others. For example, when you drive, you have a duty to do so with reasonable
care. If you violate that duty by driving recklessly and an accident results,
you are liable not just because your driving caused an accident, but
because your breach of duty to drive carefully caused an accident. You have
a similar responsibility as a business owner.
In New Jersey, for example, courts have said "the duty owed to a
business invitee [customer] is to use reasonable care to make the premises
safe, including the making of reasonable inspection to discover a dangerous
or defective condition."
Many business owners think they are liable to anyone who gets hurt in
their stores. They're not. That kind of liability is known as strict liability.
It means you are responsible for an accident or injury no matter how much
care you took to prevent it. With the exception of some dangerous activities,
strict liability does not apply to retail stores. But states do impose a
high duty of care on business owners when it comes to customer safety. You
can reduce your liability risk if you take a few simple and often inexpensive
steps before an accident happens.
Note: remember that most negligence and premise liability law is state
law and varies to some degree from state to state, but the basic principles
discussed in this article are applicable in most states. Let's look again
at what the New Jersey courts have said.
What Makes You Liable
For you to be liable, your customer has to be injured by a dangerous or
defective condition. Not all accidents meet this requirement. Someone can
fall down stairs by not watching where he or she is going. The stairs are
not necessarily dangerous or defective.
But someone also can fall down stairs because of improper lighting, lack
of railings, worn carpets or even visually confusing or disorienting carpet
patterns. Distracting signs or promotional displays near stairs can contribute
to falls. Courts in New Jersey and other states have found these conditions
to be dangerous and defective and held business owners responsible.
There are obvious instances of negligence like a vacuum cleaner
or light cord left in an aisle and less obvious ones. People fall
on floors that are too highly waxed or that become dangerously slippery
when wet, says Norman Goldstein of N.R. Goldstein & Associates, a private
consulting and forensic engineering firm in Robbinsville, NJ. Customers
have successfully sued after falling over floor mats and area rugs that
were not flat or secured to the floor or after stumbling over ridges where
tile or wood flooring meet carpeting. Doors or side panels in entryways
not made of safety glass also pose dangerous possibilities. Courts generally
find a condition to be dangerous if it's likely to cause a reasonably careful
customer to have an accident.
More Potential Problems
Building codes set standards for all kinds of things in public buildings,
from step height and width to lighting levels to door height clearances.
Violations of these standards are almost always negligence and leave you
open to liability.
Professional engineers can inspect your property to find any violations
that would elude a casual overview. For example, many stairways have center
railings or side railings made from 2-by-6-ft. pieces of wood. These do
not meet code they're too wide to grip firmly. This violation can
be fixed easily and inexpensively by grooving the board near the top or
installing a brass rail the length of the handrail, says Goldstein.
It's important to point out, however, that while violating a building
code is almost always negligence, meeting the code doesn't guarantee protection.
Some local code provisions allow non-safety glass in original doors in older
buildings. A court easily could find the glass created a potentially dangerous
condition even though it met code. That's a risk jewelers in such older
premises must evaluate.
Getting Good Advice
While private engineers can do these inspections, Goldstein says, there
are less-expensive sources of help. Contact your insurance company. Many
insurers are proactive, and loss prevention is a big part of the service
provided. Learn what your insurance company will do to help you prevent
a claim. Find out whether it only sends fliers with helpful tips or whether
it will send someone for a site evaluation. Local officials, such as building
inspectors, can help determine whether your store meets current code requirements.
Fire officials also can help identify dangerous conditions.
If you hire a private engineer, he or she probably will charge $150 to
$250 per hour, but this may be worth it to you. Future insurance premiums
and even your insurability is based in part on your claim history. A private
engineer should provide you with a detailed report on both code violations
and other conditions that could open you to liability, The report should
These remedies don't always require a huge investment of money. Many
dangerous conditions can be cured with a well-placed and simple warning
sign. An unexpected step up or down can easily cause a dangerous condition.
Adequate warning signs could render such a step safe under negligence laws.
But signs aren't always enough. Posting a "caution, wet floor"
sign probably would not help if that type of floor became unusually slippery
when wet and thus required a level of precaution that is unreasonable to
expect of a visitor. This would be particularly true if it were in an entryway
customers had to use to get in or out of the store. Again, a consultant,
insurance expert or building inspector could help you evaluate the remedy
that works in your situation.
January 1999: "Choosing Liability Insurance"
William H. Donahue Jr. is an attorney in New Jersey.
Copyright © 1998 by Bond Communications.