If you spend any time with managers or owners of businesses who do business with the public, there’s one phrase you’re likely to hear at least once, in one form or another: “I just don’t want a lawsuit.”
As a property owner, manager or responsible employee, you’re probably aware that keeping your home or business safe for your employees, family, as well as guests and customers, is extremely important. But it’s more than just that.
What Is Premises Liability?
It’s the area of personal injury law that covers accidents and injuries that happen on someone else’s property, usually (but not always) a business. As a property owner or manager, you have a “duty of care” to provide a safe place for anyone who enters. Once you are made aware of a danger, it’s your duty to either repair it or place warning signs around to prevent anyone from unknowingly walking over it and becoming injured.
An injured plaintiff is required to prove that the owner knew, or should have known, that the hazard existed, and failed to do anything about it. Anything from slippery floors to bad walkways to dark halls can be a hazard that causes injury.
If you have workers on the property, you are also responsible for keeping safe conditions for these workers. West Virginia recognizes two groups of people, “trespassers” and “non-trespassers,” meaning that a premises faces additional exposure to a lawsuit should anyone become injured.
Premises liability injuries can include:
- Slip & Fall injuries (including water leaks and snow & ice incidents)
- Defective conditions due to inadequate maintenance (such as broken sidewalks)
- Elevator, stair and escalator accidents
- Toxic fumes and chemicals
- Swimming pool accidents
- Amusement park ride accidents
- Workplace injuries
- Insufficient premises security that leads to assault or other injuries
- Dog bites
Open And Obvious
For many years, West Virginia had a clause called “open and obvious.” That is, someone injured by something that was obvious to everyone else could not hold a property owner/manager liable. The property owner still has a duty to warn visitors about a dangerous condition.
But in 2013, the state Supreme Court abolished “open and obvious,” with Hersch v. E-T Enterprises, Ltd. et al. The plaintiff in the case was a shopper who fell on a staircase without a handrail, a safety violation. Because this hazard was obvious to anyone using the staircase, the plaintiff was barred from filing suit. The majority of the court disagreed, because despite the missing handrail being “obvious,” it still didn’t preclude the owner or manager from remedying the condition.
The state legislature reversed this in 2015 with Senate Bill 13, and Governor Tomblin signed it into law. The Code of West Virginia §55-7-27 reinstates “open and obvious,” and reads in part:
(a) A possessor of real property, including an owner, lessee or other lawful occupant, owes no duty of care to protect others against dangers that are open, obvious, reasonably apparent or as well known to the person injured as they are to the owner or occupant, and shall not be held liable for civil damages for any injuries sustained as a result of such dangers.
As a property owner/manager, you are still liable for a danger that you are aware of that isn’t obvious to a guest or visitor, as well as a condition that is clear to anyone who passes near it. But a party who ignores a danger may also be barred from suing or have any settlement reduced due to comparative negligence.
Statute of Limitations
West Virginia gives plaintiffs two years to file a claim. After that period, with rare exception, most lawsuits will be thrown out.
Premises Liability Defense?
The Love Law Firm is Charleston, West Virginia’s personal injury law firm with extensive experience handling premises liability cases. Call us today at 304-344-5683 and schedule your free consultation. There’s no charge for the first visit, and our contingency fee arrangement means you won’t pay unless we win your case and recover money for you.