Property owners across Oklahoma have a duty to ensure the people who use their premises are safe. Owners should regularly inspect the floors, shelves, parking lots, and every inch of their property. Owners need to anticipate that floors may be wet, sidewalks cracked, drainage poor, carpets torn, and lighting inadequate. When they do not, they may be held liable for the injuries and losses you sustained.
The first step towards understanding what defenses may apply is to understand what is necessary to prove your slip and fall, negligent assault, or other premises liability claim. The key elements of a premises liability case are:
- The injury victim had a right to be on the property. This right is usually due to buying products or using services offered by the property owner. Even people who are just passing through to another property usually have a right to be on the property.
- The owner knew or should have known of a dangerous condition.
- The injuries – such as head trauma, spinal cord damage, or broken bones – are due to the dangerous condition.
- The victim sustained damages as a result of those injuries.
The second step is to understand which legal and factual defenses the property owner is likely to assert. Common premises liability defenses include:
Assumption of the risk
With this defense, the property owner asserts that the victim was aware of the danger and decided to proceed knowing of the risk. For example, if a shopper sees that there’s a spilled carton of eggs on the floor and decides to step through the spill – and then falls – then the property owner will claim that the shopper assumed the risk. In this case, it’s likely that the property owner’s defense will prevail.
The assumption of risk defense is commonly used at sporting events. If a sports fan at an Oklahoma City basketball game or an Oklahoma football game is injured by a basketball or football that hits their face, then, generally, the fan cannot file a premises liability claim. The teams and stadium owners will assert that the fan assumed the risk of injury. As with all cases, there may be exceptions. Fans may assume the risk of being struck by an errant ball. They may not assume the risk of falling because a railing was loose.
Not knowing of the dangerous condition
Property owners do have a duty to regularly inspect their property for any places where someone could fall, be assaulted, or be injured for any other reason. They definitely have a responsibility to make repairs to known dangers or to warn people of a known danger. There are some dangers that even with a thorough inspection, the property owner can’t see. There are also some dangers that, even if the owner knows of the danger, there isn’t sufficient time for the owner to respond.
For example, if it snows, then the owner does need time for the snow to end and time to clear the snow and/or salt the ground. Another example anticipation of dangers is an assault. Property owners should anticipate assaults if they handle a lot of cash in an area known for criminal activity. Property owners are generally not liable for failing to anticipate that a customer might assault another customer because the second customer got to the discounted item first.
In Oklahoma, the property owner has the right to claim that the victim was partially responsible for the accident. The state comparative negligence law provides that if the victim is partially responsible for an accident, the victim’s damage award will be reduced by the amount of the victim.
For example, if the victim was wearing flip-flops in an area where it was clearly wet, then the victim may be partially responsible. Owners may assert comparative negligence if the victim walks where he/she shouldn’t.
If the victim is 50% or more responsible, then the victim is not entitled to any recovery. If a victim’s case is worth $100,000 and he/she is 20% responsible, then the victim’s damage award will be reduced to $80,000.
Comparative negligence is not the same as an assumption of the risk. Comparative risk means the victim is careless. Assumption of the risk means the victim “intentionally” risked injuries.
The property owner owes a duty of care to people who have a right to be on the property. With one exception, owners don’t have a duty of care to trespassers. The one exception is that the property owners owe a duty to safeguard an attractive nuisance. An attractive nuisance is a known danger that entices children such as a swimming pool or a trampoline. Property owners need to go the extra mile to ensure children can’t access the pool, trampoline, or another attractive nuisance.
Lack of ownership or control
Property owners are liable for the property they own. Some premises liability cases involve disputes about which defendant owned the property.
Another area of contention involves leased property. A tenant normally controls the property that is being rented, so things like cleaning the floors are the responsibility of the tenant. A landlord will likely argue that if a shopper falls over merchandise on the floor that there was nothing the landlord could do – that the tenant is responsible.
Other defenses may apply depending on the reason the accident victim was on the property and how the accident happened. Each case is different.
Do I need an Oklahoma City injury lawyer for a premises liability claim?
It’s always a good idea to at least speak with an attorney after an accident. At Cunningham & Mears, you can speak to a member of our team for free to determine whether or not you have a case. if you work with us, we shoulder the burden of building your case. Our Oklahoma City injury lawyers work with investigators, review repair records, question witnesses, and cross-examine defendants to show how accidents happened and why they were preventable. We also anticipate the arguments insurance companies and defense lawyers will assert. Our preparation is a major part of our success.
At Cunningham & Mears, our Oklahoma City premises liability lawyers have 105 years of combined experience fighting for injury victims. We guide accident victims and the families of anyone killed in a property accident through each phase of the litigation. We thoroughly prepare each phase case of the case with a relentless focus on showing how the accident happened, why the defendants should be held liable, and why you deserve significant compensation. To discuss your right to compensation, call (405) 232-1212, or use our contact form to schedule an appointment. Our office is located in Oklahoma City. We’re ready to help you now.
Marcus P. Mears is a founding partner of Cunningham & Mears. Mr. Mears is committed to helping Oklahoma’s injured victims in the areas of injury law and insurance litigation. Mr. Mears was selected to the Million Dollar Advocates Forum for his work as lead counsel in multiple seven figure injury cases. Learn More