OTLA Trial Lawyer Summer 2021

8 Trial Lawyer • Summer 2021 By Kelly Andersen OTLA Guardian S ooner or later, most OTLA members will be asked to represent a prospec- tive client in a premise’s liability case. It is difficult to turn away such cases be- cause most lay people subconsciously endorse the vague concept that if they are injured on someone else’s property, the property owner is automatically lia- ble. This is simply not true. As every attorney learns — just by reading the Uniform Civil Jury Instructions — a property owner is only liable for injuries suffered on their property in limited circumstances. If the injured person is a “trespasser” (one who “enters or remains upon the premises…without a privilege to do so”), 1 the owner owes “no duty to the trespasser to keep the property in a safe condition” and is liable only if they “wantonly or intentionally injures the trespasser.” 2 If the injured person is a “licensee” (one who “is upon the premises for their own purposes with the express or implied consent” of the owner), 3 the odds of win- ning improve, but only by a little. Then the owner is liable only for injuries “caused or allowed intentionally or in reckless disregard of the rights or safety of others” or for injuries caused by a “failure to warn” of “hidden dangerous conditions of the property” known to the owner “that might cause an injury even if the licensee uses reasonable care.” 4 Only if the injured person is an “in- vitee” (one who “goes on the premises of another at the other’s invitation, either express or implied, and whose presence there is in the economic interest of the other” or who “is invited to enter or re- main on land as a member of the public for a purpose for which the land is held open to the public”), 5 is the owner re- quired to “make the premises reasonably safe for an invitee’s visit” and to “exercise reasonable care to discover any condition that creates an unreasonable risk of harm to the invitee and either eliminate the condition or warn any foreseeable invitee of the risk so the invitee can avoid the harm.” 6 Even when the injured person suc- cessfully navigates their status to be that Kelly Andersen of an “invitee,” they still face the obstacle of comparative fault. UCJI 46.10 casts that defense as follows: The invitee is required to exer- cise reasonable care to avoid harm from a condition on the premises of which the invitee knows or, in the exercise of reasonable care, should know. In determining and comparing negligence, if any, you must consider the obviousness of danger and the ease or difficulty with which harm to the plaintiff from that danger could be avoided by either party. Given this background, it is not sur- prising that former Jackson County Circuit Court Judge Loren Sawyer told a newspaper reporter he had seen only one successful “slip and fall” premises liability case in his entire judicial career. Learning from loss Over my 41 years of practice, I have handled thousands of injury cases and conducted about 125 jury trials. Those trials have included claims arising from medical malpractice, wrongful death, product defects, motor vehicle collisions, and—here I grow pensive — even a few premises liability cases. While most of my jury verdicts have been favorable, premises verdicts have haunted my ca- reer. I have been able to successfully settle about 20 of these cases — some for substantial sums — but the four prem- IN PREMISES LIABILITY CASES LURKING DANGERS