February 17, 2020
Winter is here again. The cold, ice, and snow create particular concerns for premises liability caused by customer slips and falls. Slips and falls occur year-round, however, and this refresher on Ohio premises liability will help you stay informed.
Concern for premises liability exposure permeates all retail businesses. Any customer could walk through the door, fall, sustain injury, and sue. Businesses can face significant liability in these circumstances.
Slip and fall cases are negligence claims. In every negligence action, a plaintiff must prove that the defendant owed the plaintiff a duty, the defendant breached that duty, and that the breach caused plaintiff to suffer harm. These essential elements are common throughout all types of negligence actions. Courts have adapted these elements to more particularly address different circumstances, including slip and fall lawsuits.
In the context of a slip and fall, businesses are not insurers of customer safety, but do have a duty to exercise reasonable care in keeping their premises safe for their customers. Businesses who act unreasonably breach this duty, which can lead to liability.
To prove a business acted unreasonably, in breach of their duty to customers, a plaintiff must generally show that one of the following elements of liability is present: 1) the business created the hazard; 2) the business had actual knowledge of the hazard and did nothing to address it; or 3) the hazard existed for such a long time that lack of reasonable care can be inferred.
Once the plaintiff proves one of the above, the remaining legal elements of causation and damages are typically easy to prove in the circumstances of a slip and fall. As such, the liability issues listed above become the focus of most slip and fall cases.
Businesses may avoid liability when the hazard causing a fall is open and obvious. Open and obvious hazards must be observable and recognizable, so that an ordinary person would protect themselves from the hazard. While this doctrine may be used to avoid liability, courts will specifically evaluate the circumstances at issue and make a case-by-case determination as to whether the hazard was in fact open and obvious.
Courts have further refined the law for falls occurring during winter on ice and snow. Ordinarily, a business is not liable for slip and fall injuries caused by the natural accumulation of ice and snow. Like the open and obvious hazards, the law imposes a duty on people to protect themselves from the known risks created by natural winter weather. However, this carve out is not limitless. It does not apply to unnatural accumulations of ice and snow or when ice and snow conceal otherwise open and obvious dangers that should be known to the premises occupier.
If a business is liable, damages often reach into the six figures. Falls commonly cause fractures and head trauma. The resulting medical bills, including surgeries and rehab, add up quickly. In addition to medical bills, courts will typically include a monetary award for pain and suffering. Fortunately, there are many things businesses can do to mitigate the risk of a slip and fall lawsuit. Common sense goes a long way. Entryways and floors at retail businesses should be clean and clutter free. Avoid using extension cords across walkways and creating other common tripping hazards. Employees should be trained to clean at regular intervals. When they become aware of a spill or some other hazard, they should clean it up immediately. Warning signs for wet floors and other hazards also help.
Although this seems obvious, your business should be adequately insured to protect you in the event of a slip and fall lawsuit. Re-evaluating your insurance needs and coverage as your business grows and before an incident occurs is important.
Hopefully, your business will never face a slip and fall lawsuit. However, the risk remains. With knowledge of the law and adequate insurance, you can mitigate the risks faced by your business.
This article only provides general information. If you have specific questions, or are facing threatened litigation, contact an attorney immediately to review your specific factual circumstances. Your attorney will provide assistance based upon your individual needs.
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