HERBERT & EBERSTEIN
Have you slipped & fallen at a business location, and suffered an injury?
Property owners are required to keep their properties safe for visitors. What help can you expect to receive for your injury? Call for a consultation.
Premises liability is the official term for injuries sustained on another's property.
When you visit another person’s property, especially if the property is a place of business, you should be able to visit the property without the fear of getting injured. In Texas, and in many other states around the county, property owners have a legal obligation to keep their properties in a reasonably safe condition for people visiting their properties.
Accidents and injuries that occur on someone else’s property are sometimes lumped together and collectively referred to as “slip and fall” cases, although the cause of the injury could be a trip and fall, falling objects, or other types of dangerous conditions on the property. All of these accidents, including slip and fall accidents, are called “premises liability” cases because the accident occurs on the property owner’s premises.
In general terms, the law in Texas states that property owners owe a duty to invited guests and visitors to maintain their property in a safe condition and warn others of dangerous conditions on their property. There are, of course, exceptions to this rule.
Examples of Dangerous Conditions in Premises Liability Cases in Texas
- Wet floors in a business, with no nearby warning signs
- Unreasonably slippery floors
- Defects in the flooring surface
- Uneven flooring
- Debris or clutter on store floors
- Ice and/or snow accumulation
- Falling debris from shelves or the ceiling
- Frayed rug or mat at the entrance of the store or business
- A spill left on the floor for an extended period of time
- A spill caused by an employee of the business
- Inadequate lighting
- Building code violations, such as a lack of guardrails near stairs
Slip & Fall Accidents May Occur in the Following Locations
- Grocery stores
- Shopping malls
- Apartment buildings
- Parking lots and parking garages
- Retail stores
- Amusement parks
- Stadiums and arenas
If you have been injured as a result of a property owner’s negligence, you should consider hiring an attorney experienced in handling slip and fall cases and other premises liability cases. Premises liability cases are different than other types of injury cases, and you need an experienced attorney to handle the unique challenges of a premises liability case. For example, the elements that must be proven to establish a premises liability case differ from a general liability case, like an auto accident.
Elements of a Premises Liability Case in Texas
The elements of a premises liability case in Texas are different from a general negligence case. An injured party must take extra care to ensure that the requisite elements of a premises liability case to ensure the viability of their case. If any one of the elements are missing, you’re unlikely to recover damages for your injury.
Under a theory of general negligence, the plaintiff (the injured party) must generally prove only three elements:
(1) the defendant has a legal duty to the injured party;
(2) the defendant breached that legal duty; and
(3) injury proximately caused by the breach.
See, Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex.2009).
In a premises liability case, however, the elements are more complex. The legal duty element is more complicated to prove than the legal duty element in a general liability case. Essentially, the legal duty element is broken up into four parts:
(1) injured part was an invitee;
(2) property owner exercised control over the premises;
(3) a dangerous premises condition existed; and
(4) property had actual or constructive knowledge of the dangerous condition.
United Scaffolding, Inc. v. James Levine, ___ SW3d ___ (Tex.2017) (No. 13-14-00377-CV; 6-30-17)
In addition to proving that the property owner had a duty of care, an injured party must then also prove that the property owner breached that duty and that the injury resulted from the breach. Actual and/or constructive notice can be difficult to prove in some premises liability cases.
If any one of these elements is lacking an injured party will not be able to win their case and recover for their damages. Because premises liability cases can be complex, the injured party should make sure that the attorney they hire for a slip and fall injury has experience in this area of law.
Our law firm, Herbert & Eberstein, has handled numerous slip and fall cases and has the experience needed to successfully prosecute a premises liability case.
An experienced slip and fall attorney will make sure that evidence is gathered immediately after the slip and fall accident. Examples of evidence that might be needed for a slip and fall case are witness statements, incident reports, sweep logs, safety manuals, employee files, time cards, and photos of the accident scene.
However, the most important piece of evidence in slip and fall cases is often store video of the accident and the surrounding area. This video footage is often essential to show that the store had prior knowledge of the cause of the accident. For example, video footage might show that the spill was on the floor for such an extended period of time so that the store should have known about the spill (constructive knowledge) and taken steps to clean it up. The video footage of the area prior to the incident can also be checked to determine if the cause of the accident is shown on video, and for how long the dangerous condition was on the floor.
If video footage cannot be obtained after the accident, then the attorney will put the property owner on notice of their duty to preserve video footage and other evidence relating to the cause of the accident.
Open and Obvious Conditions
Texas premises liability law contains an exception to the liability of property owners for open and obvious hazards. Under Texas law, a property owner does not have a duty to warn or protect an invitee against conditions that are naturally occurring and open and obvious, even when the property owner is aware of such a condition.
Austin v. Kroger Texas, L.P., 465 S.W.3d 193, 204 (Tex. 2015).
An example of an open and obvious condition is the natural accumulation of mud on the floor. If the mud accumulated through natural circumstances without the “assistance or involvement of unnatural contact” then the mud is considered an open and obvious condition and the property owner has no duty to warn invitees of the slippery mud on the premises.
Johnson County. Sheriff’s Posse, Inc. v. Endsley, 926 SW.2d 284, 287 (Tex.1996).
If someone is injured because they slipped in mud on the landlord’s property under this scenario, then they would not be able to recover because the mud is considered an open and obvious condition.
Property owners in premises liability cases often raise an open and obvious defense to try and avoid responsibility. You will want an experienced slip and fall attorney on your side to fight against this defense tactic.
Another defense often raised by property owners in premises liability cases is the contributory negligence defense. Essentially, this defense is an attempt to place blame for the accident on the injured party. For example, the property owner might argue that if the injured party had been paying attention to where she was walking, she would have seen the hole in the floor, and not have fallen.
In most premises liability cases, the jury is permitted to consider whether the injured party’s own actions or inactions contributed to the accident. If the jury believes that the plaintiff did something, or failed to do something, which contributed to the accident then the jury will be permitted to assign a portion of fault to the injured party.
In Texas, if an injured party cannot prove that the property owner is at least 50 percent or more at fault for the accident, then the injured party will not be able to recover compensation for their injuries. This is yet another reason that you should seek out an experienced slip and fall attorney to combat this defense and prove that the property owner is entirely responsible for the injury, not the victim.
Injuries in Slip & Fall Cases and other Premises Liability Cases
Some people may think that a person is unlikely to be severely injured in a slip and fall accident. In reality, the opposite is true. In fact, unintentional falls are the leading cause of emergency room visits in the United States.
According to data for the Center for Disease Control one out of five falls causes a serious injury such as a broken bone or head injury. Falls are the most common cause of a traumatic brain injury. In 2015 alone, the total medical costs for falls in the United States totaled more than $50 billion.
Slip & Fall Accidents May Cause Severe Injury
- Broken bones
- Torn ligaments in the ankles or wrists
- Knee damage
- Shoulder injuries such as dislocations or torn ligaments
- Spinal injuries
- Traumatic brain injuries
If you have been injured in a slip and fall accident, or other premises liability case, you should seek medical attention immediately.
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If you have been in hurt by a slip and fall accident on a business property and need a personal injury lawyer, please call us at (800) 653-7246. We can help you recover money if you have been injured by a property owner’s negligence.
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