Atlanta Premises Liability Attorneys

An Overview of Premises Liability Law in Georgia

Premises liability refers to tort liability for injuries caused by conditions or activities on a property.  This area of law includes many types of cases, ranging from slip and falls to shootings.  Unlike automobile wreck cases, a premises liability claim almost always requires an attorney.  This is because premises liability claims are fact-intensive and each type of premises liability case has its own body of law.  For that reason, we have written articles for each type of premises liability case that we handle.  If you have been injured on someone else’s property, we strongly encourage you to hire an attorney that has the right experience and financial resources to pursue your case.  You can learn more about each type of premises liability case that we handle at the following links:

• Inadequate Security – cases where someone is raped, shot, beaten, or otherwise injured because there was inadequate security;
• Overzealous Security – cases where an aggressive or untrained security guard or employee uses excessive or unreasonable force, and/or causes a person to be wrongfully arrested;
• Poor Construction and Maintenance – cases where a structure or construction equipment was built improperly or not maintained and someone is injured.
• Slip and Falls – cases where a sudden change in elevation or puddle of liquid causes someone to slip and fall;
• Hazardous Conditions – cases where a dangerous condition is present on the property, like poorly stacked merchandise or a large hole, and someone is injured;
• Dangerous Animals – cases where an animal on the property attacks and injures someone;
• Fires and Floods – cases where someone is injured due to a lack of exit doors, emergency training, or generally poor planning that results in a fire or flood; and
• False Imprisonment – cases where someone is trapped or forced to stay in a place against their will.

Even within these categories of cases, there are some unique types of hazards that are treated different and require specialized knowledge and experience.  These include the following types of cases:

• Unguarded Swimming Pools – cases where a swimming pool does not have a fence or inadequate lifeguarding, resulting in a drowning;
• Trampoline Park Injuries – cases where someone is injured at a trampoline park like Skyzone, Urban Air, or Big Air;
• Escalator Collapse or Failure – cases involving excessive speed, sudden stopping or acceleration, dangerous protruding metal parts, unsafe gaps between steps, and similar claims with escalators;
• Amusement Park Injuries – cases where someone is injured on a rollercoaster or carnival ride;
• Defective Elevator Design or Maintenance – cases where an elevator suddenly stops or plummets, an elevator door opened but there was no elevator resulting in a fall down the shaft, a mis-leveled elevator created a tripping hazard or similar claims; and
• Unlawful Vehicle Booting – cases where your vehicle has been immobilized by a boot or you are attacked by a booting operator.

Why you Should Hire an Attorney If You are Injured on Someone Else’s Property

As explained in depth below, premises liability claims are extremely complicated.  What may seem like an easy case can quickly change to a complete loss based on a failure to preserve evidence or misunderstanding a carefully worded question from an insurance adjuster or defense attorney.  The Wetherington Law Firm has the experience and financial resources needed to prove your case and obtain full compensation for your injuries.  Our skilled team will do the heavy lifting so that you can focus on getting better.  Our clients trust us to make their case a top priority and do everything possible to obtain full value for their injuries.  You can read the reviews of our satisfied clients here.  Our firm works exclusively on contingency.  That means that you do not pay us a single penny unless and until we obtain a recovery for you.  When you hire us, you can trust us to perform the following investigation:

• Preserve all evidence, including witnesses and video surveillance;
• Interview or depose witnesses to your incident;
• Identify all possible defendants;
• Develop the evidence necessary to determine the correct standard of care for each defendant;
• Fully document your current medical condition;
• Work with your physicians to understand your future medical needs and how much they will cost; and
• Keep you informed every step of the way.

In the courtroom, our attorneys will fight for you.  Defendants play games on things as simple as who owns the property.  We cut through the red tape and prove exactly who is liable and why.  Click here to contact us now.

What it Takes to Win a Premises Liability Claim

Although the application of the law in each type of case is very different, all premises liability cases come from the same body of law.  To sustain a premises liability action, the plaintiff must establish the basic elements of a tort:

1. The existence of a duty on the part of the defendant to protect the plaintiff;
2. The failure of the defendant to perform that duty;
3. Actual injuries; and
4. Proof that the injuries were proximately caused by the defendant’s negligence.

These elements can be confusing.  That is why we have written several articles on each of these elements that you can read here.  The important thing for you to know is that the first element, duty, is the most import in evaluating a premises liability case.  Another good word for duty is responsibility.  In Georgia, the duty or obligation owed by a property owner or occupier changes based on why you are on the property.  A landowner or occupier owes a higher responsibility to people invited to a property than someone that comes onto the property without permission.  However, figuring out whether a person had permission to come onto a property is more complicated than it seems.  This is why Georgia has developed three categories of

visitors:  invitee, licensee, and trespasser.

An Invitee is a Person Invited to Come onto a Property for the Benefit of the Owner or Occupier

An invitee is anyone that comes onto a property with express or implied permission for the benefit of the owner or occupier.  Express permission is relatively straight forward.  For example, if you pay someone to come onto your property to paint your house, they are an invitee.  Similarly, if a business asks a customer to come sign a document, the customer is an invitee while at the business.

Georgia defines implied permission this way:

An implied invitation is one that is extended because of the owner doing something or permitting something to be done, fairly indicating to the person entering that the entry and use of the property is consistent with the intents (or interests) and purposes of the owner.

Alternatively stated, if a person enters a business for any purpose connected with the interests of the business, the person is an invitee.  For example, if a business is open to the general public, any potential or actual customer is an invitee while at the business.

Property Owners Owe Invitees a Duty of Ordinary Care to Keep Premises Safe

Owners or occupiers of a property owe an invitee the duty to exercise ordinary care in keeping the premises safe. That duty extends to all portions of the premises that are reasonably necessary for the invitee to use in the course of the business for which the invitation was given.  At trial, the jury is often read the following definition of duty in invitee cases:

Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.

The owner or occupier is not required to warrant the safety of all persons from all things, but to exercise the diligence toward making the premises safe that a good business person is accustomed to use in such matters. The true ground of liability is the owner/occupier’s superior knowledge of the perilous condition and the danger therefrom to persons coming upon the property. It is when the perilous condition is known to the owner and not known to the person injured that a recovery is permitted.

Alternatively stated, a property owner or occupier owes the following duties to invitees:

• Routinely inspect the premises for dangerous conditions;
• Warning invitees of any known dangers; and
• Fixing any discovered hazards.

In order to prevail, the person injured must prove by a preponderance of the evidence that the owner or occupier had actual or constructive knowledge of the hazard and that the plaintiff lacked knowledge of the hazard or for some reason, attributable to the defendant, was prevented from discovering it.  To establish constructive knowledge, the plaintiff must show that either (1) the defendant or the defendant’s employees were in the immediate vicinity of the hazard or (2) the hazardous condition has existed long enough that ordinary diligence would have discovered it.  Because property owners and occupiers owe a duty to routinely inspect the premises for dangerous conditions, constructive knowledge may be inferred when the owner or occupier lacked a reasonable inspection procedure.

Generally, an invitee can meet their burden in a premises liability case if each of the following is proven:

1. There is a dangerous condition on a property;
2. The owner or occupier of the property knew about the dangerous condition or should have known about the dangerous condition;
3. The owner did not fix the dangerous condition or did not warn about the dangerous condition;
4. The dangerous condition caused an injury; and
5. You did not have actual knowledge about the dangerous condition or you did not know about the condition, but did not know how dangerous it was.

A Licensee is a Person Who Comes onto a Property for their own Benefit with the Permission of the Property Owner

Georgia defines a licensee as any person who comes onto a property and:

1. Is not a customer, employee, or trespasser;
2. Does not stand in any contractual relation with the owner of the premises; and
3. Is permitted expressly or impliedly to go on the premises merely for his/her own interests, convenience, or gratification.

Examples of licensees include friends and family, unsolicited door-to-door salesmen, religious missionaries, and political campaigners.  Because the definitions are somewhat similar, Georgia has a test to determine if a person is an invitee or a licensee:

The general test as to whether a person is an invitee or a licensee is whether the injured person at the time of the injury had business relations with the owner of the premises that would cause his/her presence to be beneficial to both. In the absence of some relationship with the owner or occupier of the premises, no invitation may be implied, and the injured person must be regarded as a licensee.

Property Owners Owe Licensees a Duty of Protection from Willful or Wanton Injury

A licensee enters on the premises at his or her own risk.  The owner owes the licensee no duty as to the conditions of the premises, except that the owner should not knowingly let the licensee run into a hidden peril or willfully or wantonly cause him/her injury.  Property owners have a slightly lesser duty to licensees than to invitees. The owner has a duty to warn licensees of known dangers that the owner is aware of and knows that licensees are unlikely to discover on their own. However, owners do not have a duty towards licenses to inspect the premises for dangerous conditions or to repair known problems.  For example, if a property owner is hosting a yard party and knows that the pool is unsafe, the property owner owes a duty to warn guests that the pool is unsafe for swimming.

A Trespasser is a Person that Enters a Property Without Permission

A trespasser goes upon private premises without the permission or consent of the owner or person in charge.  Generally, a landowner or occupier is not bound to anticipate the presence of trespassers on private property.  However, even if the owner or occupier knows that the person frequently trespasses, the person is still a trespasser.

Property Owners Owe Known Trespassers a Duty of Protection from Willful or Wanton Injury

The owner or person in charge of a property owes no duty to keep the premises in a condition safe for trespassers who enter without the knowledge of the owner or person in charge.  Moreover, the owner of the premises owes no duty to a trespasser until after his or her presence is actually known and then only owes the trespasser the duty not to willfully or wantonly injure him or her.

Children Are Owed Special Duties

There is a large exception to the rules when it comes to minor children.  Georgia law recognizes that children are attracted to trampolines, swimming pools, construction sites, and unattended hunting equipment. The doctrine of attractive nuisance protects trespassing children in circumstances where their presence is reasonably anticipated and measures to protect them can be undertaken without placing a heavy burden upon the owner’s unrestricted use of his land.  Where a property owner or occupier is aware that children play in and around the premises, the property owner or occupier is bound to anticipate the presence of children and is under a duty to use ordinary care to avoid injuring them after their presence is known or reasonably should be anticipated.

Georgia has developed the following test to determine whether a property owner or occupier can be held liable for injuries to a trespassing child:

1. The place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
2. The condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
3. The children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
4. The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
5. The possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

This test does not apply if the child is a guest on the owner’s property.  In those cases, the child is considered an invitee or licensee.

How Can You Lose a Premises Liability Case in Georgia?

In premises liability cases, proof of an injury on a property, without more, does not create liability on the part of the property owner or operator.  Under Georgia law, it is well settled that property owners and operators are not insurers of an invitee’s safety.  People are injured at businesses every day and do not receive any type of compensation.  There are many reasons why people lose premises liability claims.  Here are the most common ways that a case is lost.

Failing to Bring a Claim in Time Can Result in a Complete Bar of the Claim

Georgia has a two-year statute of limitation for most premises liability claims.  A statute of limitation in a civil case is a statute that provides the maximum period of time in which a civil lawsuit must be commenced or it is forever barred. The purpose of a statute of limitation is to prevent an injured party from delaying the commencement of an action. Delay brings about the undesired result of evidence becoming lost, fading memories with crucial facts now forgotten, or witnesses having died. Statutes of limitation rest on the basic premise that if one person has a claim against another person, he or she should not be able to assert such a claim after an unreasonable length of time during which the defendant has been lulled into the security that no such claim even exists.

The Doctrines of Contributory Negligence and Comparative Fault Can Limit Recovery in a Premises Liability Action

Contributory negligence is a common defense used by owners or occupiers of property in premises liability cases.  In a premises liability case, a defense of contributory negligence claims that the plaintiff failed to stay aware of his or her surroundings, and that such failure should disqualify the plaintiff from recovering. If the defendant is successful in a contributory negligence defense, this is a complete bar to the plaintiff’s recovery.  The contributory negligence doctrine is extremely harsh and intended to be cruel to injured people.  It is currently only used in Alabama, Maryland, North Carolina, Virginia, and Washington D.C.

A majority of states, including Georgia, have adopted a “comparative negligence” system.  In a comparative negligence system, the trier of fact compares the plaintiff’s negligence to the defendant’s negligence and applies percentages to each.  Depending on the state, the Court either reduces the total recovery by the percentage assigned to the Plaintiff or rules in favor of the Defendant if the percentage assigned to the Plaintiff is over a certain amount.

Georgia’s doctrine of comparative negligence is developed in two code sections:

O.C.G.A. § 51-11-7. Effect of plaintiff’s failure to avoid consequences of defendant’s negligence

If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover. In other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained.

O.C.G.A. § 51-12-33. Reduction and apportionment of award or bar of recovery according to percentage of fault of parties and nonparties

Where an action is brought against one or more persons for injury to person or property and the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall determine the percentage of fault of the plaintiff and the judge shall reduce the amount of damages otherwise awarded to the plaintiff in proportion to his or her percentage of fault. … {T}he plaintiff shall not be entitled to receive any damages if the plaintiff is 50 percent or more responsible for the injury or damages claimed.

Alternatively stated, if the plaintiff is found to be 50% or more negligent when compared to defendant(s), then he is barred from recovering anything in Georgia. Here is an example:

A New Orleans Saints fan is visiting Atlanta. The fan is intoxicated, not looking where he is going, and generally demonstrates poor judgment. He trips over a hazardous condition and is injured. The jury awards $100,000 and determines that the Saints fan is 49% at fault for his injuries. Under a comparative negligence system, the Saints fan would only be able to recover $51,000 ($100,000 minus $49,000).

Assuming the Risk of Injury Bars a Recovery in Premises Liability Cases

Assumption of the risk is another defense frequently seen in premises liability cases.  Unlike comparative negligence, the assumption of the risk defense is very difficult to prove.  A defendant asserting an assumption of the risk defense has the burden of establishing that the plaintiff had actual knowledge of the danger, understood and appreciated the risk, and voluntarily exposed his or her self to the risk.  Actual knowledge is required to show an assumption of the risk.  Even where there is evidence to show that one party could or might have discovered and avoided the hazardous condition, the defense of assumption of the risk can not be presented by the defendant.  This is because the knowledge requirement does not refer to an injured persons’ comprehension of general, non-specific, risks that might be associated with such conditions or activities.

Nonetheless, if the fact finder finds that the plaintiff had actual knowledge of the hazard and voluntarily assumed the risk of injury, then that is a complete bar to the plaintiff’s recovery.

Government Entities are Sometimes Immune from Liability

This is an area of law that is too broad to be covered in this article.  However, please know that where there is a possibility that a government employee or entity was partially responsible for a hazardous condition, special rules apply.  There are different deadlines for presenting claims, different rules for filing suit, and limits on who can be sued.

What Damages Can You Recover in a Premises Liability Case?

The main public policy purpose for tort law is compensation. Compensatory damages are money damages awarded to compensate the plaintiff and make the plaintiff whole. The system is not perfect. Life, limb, and freedom from pain cannot be restored. However, compensatory damages are a means of attempting to place the plaintiff in the same relative position that he or she was in before the loss by way of monetary compensation.

Compensatory damages are categorized as either general damages or special damages. General damages are “non-economic” losses, such as pain and suffering, disfigurement, or mental anguish, all of which have no specific, itemized value.  The monetary value of general damage is determined by the jury, and jury awards are not consistent.  A broken ankle in one courtroom could be worth $10,000 in pain and suffering.  In another courtroom, it could be worth $100,000.  Matt Wetherington tried a case in Fulton County that resulted in a $2.8 million verdict for a broken ankle.

Special damages are “economic” losses, such as medical expenses, lost wages, or the cost of hiring household help, all of which do have a specific itemized value and can be more easily determined or calculated on a simple mathematical basis – once you have obtained the necessary records to prove that the expenses were incurred.

The Wetherington Law Firm Has Recovered Millions for Clients Involved in Premises Liability Suits

Our attorneys are highly skilled in premises liability claims.  In many cases, settlement is not possible until a judge rules that the proper defendants have been named, the claims asserted are valid, and there is enough evidence to proceed forward to a jury trial.  By that point, it is too late to fix problems in the case.  It is important that you start with an attorney that has the experience and resources necessary to put your case in the best position possible.  Our attorneys have literally spent months in the court room presenting personal injury cases and obtaining record breaking verdicts.  We also have attorneys that have spent years working for defense firms and know the traps that are set by corporations and their insurance companies.

Call or email us today for a free consultation.  If we accept your case, it will be on contingency.  That means that you do not pay anything up front and only pay us if we win your case.