You get out of your car to go into your doctors appointment, and right in the walkway, but not in plain sight, is a big rock. You trip and fall seriously injuring your hand; in fact, your injury requires stitches. Do you have a case?
Premises liability cases are some of the most difficult cases to handle. They have a lot of defenses, and one of them is what is called open and obvious.
In this case, the rock was used by another business to prop open the door. But it had been kicked or somehow moved in front of the car.
Was the rock open and obvious – in plain sight? That’s a question a jury will answer if the case gets that far.
Basically, the defense says that if it is something that is open, obvious and not camouflaged and if you pay attention to where you’re going, you would see it and not trip. And in that case, you’re barred from recovering any damages.
If it is not obvious, as in this case where the rock was hidden by the car, the landlord is liable. But you must be able to prove that it was not open and obvious.
Another way that landlord liability occurs is when an accident happens on the premises; let’s say a grocery store where a customer drops a banana peel.
If you slip on the peel just after it is dropped, the store is not liable because, one, they didn’t create the hazard, and two, it wasn’t there for a length of time that they knew or should have known it was there.
If the store knew about it and did nothing, then they are liable.
But you have to prove negligence. Just falling on someone’s property does not equal a recovery.
In any accident, make sure that you take plenty of pictures; once the evidence is gone, you’re out of luck. And the burden of proof then becomes next to impossible.