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Premises Liability

 

 

Premises Liability

Elements

Example Cases

Proof

Before discussing this contention it is appropriate to note that, in the ‘slip and fall’ case involving a foreign substance upon a surface, proof as to how and why such substance was there is indeed a problem. If, perchance, evidence is available to establish or permit the reasonable inference that its presence was the result of conduct by agents or employees of the defendant, liability may be found upon ordinary agency principles; respondeat superior is applicable, and notice is imputed to the defendant. In such case ‘notice’ need not be shown. Wagon Wheel v. Mavrogan, 78 Nev. 126, 369 P.2d 688. *510On the other hand, if the presence of the foreign substance was due to the acts of persons other than agents or employees of the defendant, liability may be found only on proof that the defendant had either actual or constructive notice thereof. Annot. 61 A.L.R.2d 6, 69. Frequently, positive evidence is not available to explain the presence of such foreign substance, and the trier of fact is called upon to draw such reasonable inferences as are permitted from the evidence offered in this regard.

Eldorado Club, Inc. v. Graff, 78 Nev. 507, 509-10, 377 P.2d 174, 175 (1962)



Damages

Defenses

Misc

  • The owner or occupant of property is not an insurer of the safety of a person on the premises, and in the absence of negligence, no liability lies. Gunlock v. New Frontier Hotel, 78 Nev. 182, 185, 370 P.2d 682, 684 (1962). An accident occurring on the premises does not of itself establish negligence. Id. Yet, a business owes its patrons a duty to keep the premises in a reasonably safe condition for use. Asmussen v. New Golden Hotel Co., 80 Nev. 260, 262, 392 P.2d 49 (1964). Where a foreign substance on the floor causes a patron to slip and fall, and the business owner or one of its agents caused the substance to be on the floor, liability will lie, as a foreign substance on the floor is usually not consistent with the standard of ordinary care. Id. at 262, 392 P.2d at 50; Eldorado Club, Inc. v. Graff, 78 Nev. 507, 509, 377 P.2d 174, 175 (1962). Where the foreign substance is the result of the actions of persons other than the business or **323 its employees, liability will lie only if the business had actual or constructive notice of the condition and failed to remedy it. Asmussen, 80 Nev. at 262, 392 P.2d at 50; Eldorado Club,78 Nev. at 510, 377 P.2d at 175.

    Sprague v. Lucky Stores, Inc., 109 Nev. 247, 250, 849 P.2d 320, 322-23 (1993)

    Whether Lucky was under constructive notice of the hazardous condition is, in accordance with the general rule, a question of fact properly left for the jury. See 2 Norman J. Landau, Edward C. Martin & Michael R. Thomas, Premises Liability: Law and *251Practice §§ 8A.03[2], 8A.03[3] (1992).

    Sprague v. Lucky Stores, Inc., 109 Nev. 247, 250-51, 849 P.2d 320, 323 (1993)

     Based on the deposition testimony presented to the district court, a reasonable jury could have found that Lucky knew that produce was frequently on the floor, that this produce created a hazard to shoppers, and that sweeping the floor could not wholly keep the floor free of debris. A reasonable jury could have determined that the virtually continual debris on the produce department floor put Lucky on constructive notice that, at any time, a hazardous condition might exist which would result in an injury to Lucky customers. We conclude the district court erred in denying Sprague the right to have these factual issues decided by a jury or other finder of fact.

    Sprague v. Lucky Stores, Inc., 109 Nev. 247, 251, 849 P.2d 320, 323 (1993)

    Even without a finding of constructive notice, a jury could conclude that Lucky should have recognized the impossibility of keeping the produce section clean by sweeping. Sufficient evidence was presented before the district court to justify a reasonable jury in concluding that Lucky was negligent in not taking further precautions, besides sweeping, to diminish the chronic hazard posed by the produce department floor.

    Sprague v. Lucky Stores, Inc., 109 Nev. 247, 251, 849 P.2d 320, 323 (1993)

    Evidence was also presented that Lucky had knowledge of the availability of skid mats which would minimize the risk to shoppers of slipping and injuring themselves. From the deposition testimony presented to the district court, material issues of fact arose as to whether Lucky failed to use reasonable care in not placing skid mats in the produce area, given Lucky’s knowledge of the continual build-up of debris and knowledge that no amount of cleaning could rid the floor of all of it. These factual determinations were not proper for summary adjudication.

    Sprague v. Lucky Stores, Inc., 109 Nev. 247, 251, 849 P.2d 320, 323 (1993)


    The circumstances in this case are markedly different from those in Sprague v. Lucky Stores,in which frequent instances of spilled produce could have put the defendant on constructive notice of a hazardous condition. Plaintiff has not alleged that Carrabba’s had any history of water or other debris in the restrooms that posed a hazardous condition. The mere fact that the men’s room in Carrabba’s allegedly had water on the floor on this one occasion is simply not enough to serve as constructive notice. The fact that Carrabba’s allegedly checks its restrooms frequently throughout the day does not change that conclusion. Water, if it was indeed on the floor before Plaintiff’s fall, could have been on the floor between inspections. However, taking the evidence regarding water on the floor along with the evidence that a janitor was headed to the restroom with a bucket and a mop in the light most favorable to Plaintiff, we conclude that Plaintiff has shown that there exists a genuine issue of material fact on the matter of actual or constructive notice.

    Linnell v. Carrabba’s Italian Grill, LLC,  — F.Supp.2d — 2:10-CV-00610-ECR, 2011 WL 2472577 (D. Nev. June 21, 2011)

    In order to avoid summary judgment, Allgood was required to offer admissible evidence that the Fund either caused, knew of, or should have known of the alleged dangerous condition of the stairway. Cf. Sprague v. Lucky Stores, Inc., 109 Nev. 247, 250, 849 P.2d 320, 322-23 (1993) (where foreign substance causing patron to slip and fall results from actions of persons other than business or its employees, business is liable only if it had actual or constructive notice of condition and failed to remedy it). Appellants do not cite to the record for evidence of the Fund’s responsibility for or knowledge of the unsafe condition. Allgood filed an affidavit with the district court in which she stated that she believed that the Coblentzes and the Fund had been told of two prior falls on the stairs. She also filed a supplemental affidavit, stating that many women in ABPA’s office were required to *1172wear high heels and that she was informed and believed that the Fund was aware that women at the office typically wore high heels. We conclude that this was insufficient evidence that the Fund knew of the alleged dangerous condition that caused Allgood’s fall and injuries.

    Coblentz v. Hotel Employees & Rest. Employees Union Welfare Fund, 112 Nev. 1161, 1171-72, 925 P.2d 496, 502 (1996)

    This is not true when a court is called upon to judge the legal consequences flowing from a slip and fall upon a waxed floor. It has long been established that the waxing of floors is compatible with the legal standard of ordinary care. Annot. 63 A.L.R.2d 591. An owner in treating a floor may use wax without incurring liability to one who slips and falls, unless he is negligent in the materials he uses or in the manner of applying them. Bonawitt v. Sisters of Charity of St. Vincent’s Hospital, 43 Ohio App. 347, 182 N.E. 661.1

    Asmussen v. New Golden Hotel Co., 80 Nev. 260, 262, 392 P.2d 49, 50 (1964)

    Regarding Contributory Negligence: The Wagon Wheel urges that the record discloses Mavrogan’s contributory negligence as a matter of law. Usually, the issue is one of fact; it becomes a question of law only when the evidence is of **690such a character as to support no other legitimate inference. Carter v. City of Fallon, 54 Nev. 195, 201, 11 P.2d 817, 816, 16 P.2d 655; Gordon v. Cal-Neva Lodge, Inc., 71 Nev. 336, 291 P.2d 1054. The evidence before us is not of such character. While descending the stairway, Mavrogan did not particularly notice the nails and wood on the step where he slipped and fell a moment later. He had no prior knowledge of their existence at that place. He was looking at other who were also walking down the stairway, and at the bus which he and others intended to board for their return trip to San Francisco. His attention was momentarily attracted in another direction. Under such circumstances it was for the jury to determine whether he exercised ordinary care for his own safety. Cf. City of San Diego v. Perry, 9 Cir., 124 F.2d 629; Merchants’ Ice & Cold Storage Co. v. Bargholt, 129 Ky. 60, 110 S.W. 364. Accordingly, this claim of error is without validity.

    Wagon Wheel Saloon & Gambling Hall, Inc. v. Mavrogan, 78 Nev. 126, 128, 369 P.2d 688, 689-90 (1962)

    In the case at hand, the defendants made special use of the portion of the driveway over the public sidewalk where Neal Herndon claims that he slipped and fell. Moreover, it apparently is his contention **1025that the hazard he encountered was not the result of a natural accumulation of ice and snow, but, rather the consequence of vehicular traffic by the defendants, employees of the defendants, or their customers. These special circumstances, if established to the satisfaction of the finder of facts, could justify a finding of negligence sufficient to warrant recovery. Franzen v. Dimock Gould & Co., 251 Iowa 742, 101 N.W.2d 4 (1960). An abutting property owner or occupier is, in our view, under a duty to maintain that portion of a public sidewalk put to his special use in a reasonably safe condition for pedestrians if that special use by the defendants or its customers creates the hazard.

    Herndon v. Arco Petroleum Co., 91 Nev. 404, 406, 536 P.2d 1023, 1024-25 (1975)