“Premises liability” is a property owner’s responsibility to keep the property reasonably safe, and it is what lets you recover damages when a preventable hazard on someone else’s land hurts you. In Illinois, an owner or occupier owes lawful entrants reasonable care under the circumstances (740 ILCS 130/2), and most injury claims have to be filed within two years (735 ILCS 5/13-202). What makes these cases hard is everything underneath that rule: negligent security, foreseeability, landlord duties, shared fault, and what the losses are actually worth.
What Is Premises Liability?
Premises liability is more complex than the bare facts of an accident and involves problems of “negligence” on behalf of not only the property owner and his/her duty to oversee a hazard-free environment, but also the victim in the case. An individual who is injured by a hazardous condition on a property which could have reasonably been resolved by the property owner may be entitled to compensation for his/her losses via a premises liability claim. In cases in which a property owner is aware of a hazard but cannot reasonably remove it, he/she must clearly mark the hazard to properly warn guests, and failure to do so can incur liability.
Here are some common examples of dangerous conditions which can pose risks to guests on the property:
- Broken stairs
- Gas leaks
- Overgrown trees or bushes
- Unsecured fire pits, electrical cords, or railings
- Unfenced pools
- Wet surfaces
- Sinkholes which are concealed by grass or leaves
- Bodies of water which are concealed by fallen leaves
These injuries can occur inside or outside of a building. If you have been injured by a property owner’s negligence, get medical attention first, because a prompt diagnosis protects your health and creates the record a claim is built on. There is no reason to wait to talk to a lawyer, though, since evidence like surveillance video, incident reports, and maintenance logs disappears quickly.
Duty of Care and Property Visitors
A property owner’s liability is measured by the “duty of care” owed to the person who was hurt. Illinois no longer sorts lawful visitors into tiers. The Premises Liability Act abolished the old common-law distinction between invitees and licensees, so a dinner guest and a paying customer are owed the same thing: reasonable care under the circumstances as to the condition of the property and what is done or left undone on it (740 ILCS 130/2). That duty generally does not require warning about conditions that are known to the entrant or open and obvious. Trespassers are owed far less, though even trespassers have legal protection to a short extent, so all property owners must be aware of how Illinois law affects them and their particular properties.
Premises Liability by the Numbers
Premises liability lawsuits, when the plaintiff was injured on the defendant’s property due to their negligence in exercising reasonable care for their entrants, are more common than people may think. The U.S. Department of Justice reported that in 2001, premises liability cases accounted for 11% of civil cases disposed of by trial. They also reported that each year about 4 billion dollars are awarded to compensate premises liability injury victims. Punitive damages, money awarded to the plaintiff in the event of gross negligence and extreme recklessness, were awarded in just 6% of premises liability cases. One accident that we are more familiar with, a slip and fall, was reported 234,450 times for nonfatal accidents and 789 fatal ones, according to the U.S. Department of Labor.
According to reports by Jury Verdict Research, median awards varied sharply with the type of property involved, running highest in cases against owners and operators of industrial property and lowest against residential property owners, at roughly 75 thousand dollars. The most frequently reported injuries in these cases has been knee injuries, comprising 11% of the total number of plaintiff verdicts, whereas the least claimed injury has been wrist injuries in about 5% of cases. These are dated figures from private verdict surveys rather than an official government count, and past results do not predict what any particular claim is worth.
Premises Liability and Negligent Security
Property owners are legally obligated to maintain safe premises for those who come onto the property, and this often includes an obligation to provide adequate security. If you’ve been injured during a crime which occurred due to inadequate or negligent security, you may have a viable claim against the property owner under premises liability law. There is a wide range of incidents for which a property owner may be held liable due to inadequate security, including assaults, muggings, thefts, sexual assaults, and even abductions.
Types of negligent security include:
- Absence of security cameras
- Inadequate lighting
- Open gates which should be closed and/or locked
- Inadequate, negligent, or absent security guards
- Failure to secure entry/exit doors
- Failure to properly assess visitors or employees
Premises liability claims can be complex and may require a number of factors to be established. You will need to prove that:
- The property owner was indeed legally obligated to protect those on the property from criminal activity
- The property owner was aware, or should have been aware, of the danger of criminal activity
- The property owner had a “reasonable opportunity” to take appropriate safety precautions, but failed to protect those on the property from harm
To establish liability, the quality of the security precautions at the time must also be examined, including:
- Security measures, or lack thereof
- Training, experience, and qualifications of security personnel at the time
- The property owner’s extent of involvement in implementing and maintaining comprehensive security programs
- Quality of security equipment used
- Whether the security plan was managed competently and efficiently
Foreseeability in Premises Liability and Negligent Security Claims
Premises owners must exercise reasonable care to protect their entrants from harm caused by apparent risks of injury, and an important part of this duty of care is “foreseeability.” While this care is usually limited to areas to which guests are invited or may be reasonably expected to venture, owners may not have the same liability for what is unforeseeable. For example, an owner does not have a duty to protect an individual on the premises from an attack by an individual over whom the owner has no control, unless the attack was “reasonably foreseeable.”
The legal sense of foreseeability has been defined as proving that the proprietor knew or should have known of the dangerous propensities of a particular patron, or that a proprietor knew or should have known of a dangerous condition of his premises that was likely to cause harm to a patron. It’s important to remember, however, that foreseeability alone is insufficient to hold a property owner legally liable for an attack by a third party on his/her premises, as the injured victim may also need to prove that the crime could have been prevented had the owner exercised “reasonable caution.”
In a negligent security claim for an attack by a third party, it is essential that the claimant was rightfully on the property at the time (i.e. not a trespasser) in order for an initial duty of care to exist. Next, exactly who had control of the premises must be determined, and this is not always clear-cut, as many business premises are maintained by multiple parties. Also, ownership does not always equal control, as control is often of greater importance when determining liability in the claim. It may also be necessary to check the property owner’s contract provisions in case they have accounted for more security than the owner actually provided; liability may fall on the owner if a visitor relied on representations of security which weren’t provided.
Lawsuits filed against businesses by individuals who were assaulted by a third party on the business’s premises are commonly known as “negligent security” cases. Those who oversee a premise have a duty to protect patrons from criminal attacks, provided that such an attack was “reasonably foreseeable.” To establish that a crime was “foreseeable,” it must be proven that the business was, or should have been, aware of the likelihood of the crime; this is known as “constructive knowledge” or “constructive notice.” Evidence of similar crimes in the past can be crucial, as well as the lapse in time and geographic proximity of those past crimes to the current one.
There is real debate about how similar a past crime has to be. Courts have ruled that prior incidents of theft or vandalism in or around an establishment do not necessarily make violent crime, such as assault or robbery, foreseeable. Narrow readings of “similarity” make constructive notice harder to prove, and Illinois judges do not all draw that line in the same place, so how a foreseeability argument is built and supported can decide the case.
Landlord Liability and Negligence
Landlord liability is a form of general premises liability. When an individual suffers an injury on someone’s property, proving negligence on behalf of the property owner is an essential part of the claims process; generally, a landlord’s negligence in a leased area, such as an apartment building, is more difficult to prove than negligence in a common area, such as a sidewalk or stairway. Landlords cannot always be held accountable for hazards of which they were unaware, such as those which develop long after tenants sign their leases and move into their spaces.
To establish liability for a landlord, a few factors must be proven, including: a “latent” defect existed at the time of the lease’s signing; the landlord was aware, or should have been aware, of the defect; and a reasonable examination by the tenant could not have identified the defect. Liability may also be established if a landlord purposely concealed knowledge of a dangerous condition from the tenant.
Ultimately, six factors must be established to hold a landlord liable for an injury suffered on the premises:
- Maintaining the particular part of the property where the injury happened was the landlord’s responsibility
- The landlord did not take reasonable precautions that would have prevented the injury
- Warning about the problem or fixing it entirely would not have been unreasonably difficult or costly
- A serious injury was likely if the landlord did not fix the problem
- The landlord’s negligence was the proximate cause of the injury
- The victim is genuinely injured
In Illinois, landlords are not generally required by law to shovel or remove ice and snow from stairs and walkways, and a “natural” accumulation is not their responsibility. The familiar idea that bad shoveling creates liability is narrower than it sounds. The Snow and Ice Removal Act gives an owner, lessor, occupant, or other person in charge of residential property who removes or attempts to remove snow or ice from an abutting sidewalk immunity from injury claims blamed on that effort, unless the conduct was willful or wanton (745 ILCS 75/2). What the Act does not cover is a defect in the property itself. In Murphy-Hylton v. Lieberman Management Services, the Illinois Supreme Court held that the immunity reaches negligent snow and ice removal but not a negligent failure to maintain the premises that produces an unnatural accumulation, such as bad drainage or a broken downspout. Municipal ordinances add a separate layer: in Chicago, snow that falls between 7 a.m. and 7 p.m. must be cleared from the abutting sidewalk by 10 p.m., and snow that falls between 7 p.m. and 7 a.m. must be cleared by 10 a.m., with fines of 50 to 500 dollars per offense (Chicago Municipal Code 10-8-180). Whether a violation of that kind of ordinance supports a private injury claim is a separate question that turns on the ordinance and the case law, so it is worth asking a lawyer about before you rely on it.
Deadlines and Shared Fault in an Illinois Premises Case
Two rules can decide a premises case before anyone argues the facts. Most Illinois personal-injury claims must be filed within two years of the injury (735 ILCS 5/13-202). When the property belongs to a city, park district, school district, transit agency, or any other local public entity, that window drops to one year from the date the injury was received, and it covers the entity’s employees too (745 ILCS 10/8-101). A great many falls happen on exactly that kind of property, and the one-year deadline can bar the claim on its own while the two-year clock still looks like it has time left on it.
Illinois also applies modified comparative fault. Your damages are reduced by your own share of the blame, and you recover nothing if a jury finds you more than 50% responsible (735 ILCS 5/2-1116). Expect the property owner’s insurer to build its defense around that percentage, usually by arguing the hazard was open and obvious or that you were not watching where you were going.
Injury Liability at Hotels and Resorts
When you stay at a hotel or resort as a guest, it is generally expected that the facility has received regular inspections and does not pose any unnecessary safety risks for those on the premises. However, accidents still occasionally occur in these facilities regardless of necessary inspections, and in some cases the property owner may be legally liable for injuries sustained by a guest on the property. Here are some common hazards at hotels and resorts:
- Resort grounds – Negligence on resort grounds includes slippery floors, inadequate security (interior or exterior), and failure to place proper warning signs for existing hazards.
- Rides/attractions on premises – Injuries can result from improper/inadequate maintenance or poorly-trained personnel. A resort may also be liable for hiring or retaining negligent independent contractors in some cases.
- Transportation – Hotel/resort guests are commonly provided transportation via vans, buses, and shuttle services, and the facility may be liable for injuries when these vehicles are not properly repaired, inspected, or maintained.
To recover for an accident at a hotel or resort, you have to establish that the facility owed you a legal duty of care; that the duty was breached; that the breach caused the accident; and that you suffered injuries or losses as a result.
Damages in Premises Liability Cases
A premises liability lawsuit allows you to make claims for the damages that you have suffered, from medical expenses and lost income to non-economic harms such as disability, emotional distress, and pain from specific injuries.
Disability
Some premises liability accidents end in much more severe and lifelong injuries than others. In these cases, the plaintiff may be left disabled. These types of lawsuits allow you to recover any expenses that have been associated with assessing and treating your disability. This is an aspect of medical expense damages; however, it can make up a large aspect of your claim since a disability can be a large financial responsibility and complete change of lifestyle. Disability damages cover not only the expenses that you have already had to endure, but can also encompass future expenses to maintain your health and body. The more severe, debilitating, or lifelong that your disability is, the more it affects your life, and the more you may be awarded.
Emotional Distress
Within the category of non-economic damages, you can make a claim for “emotional distress.” This type of damage refers to the mental, emotional, and/or psychological damages that you may have suffered in the aftermath of the accident. This includes, but is not limited to, conditions that you may have been diagnosed with, like depression, insomnia, or anxiety. Your attorney will assist you in proving your emotional distress to the court by citing evidence which can be your psychologist or therapy appointments, medical treatments for your condition, or your personal testimony. You should be able to prove that it affects your everyday life in order for your claim to be successfully presented to the court.
Back Injuries
Back injuries are a common injury in premises liability cases that can arise from accidents such as a car crash, a slip and fall, or a fall from a high height. More severe complications can arise from a back injury that makes it even more difficult to live your everyday life. These can turn into neck injuries or spinal cord injuries which can disrupt your body’s central nervous system and result in a loss of mobility or function. If your back injury has stopped you from living your life as you previously did, you may be losing income and enjoyment of daily life, things that will strengthen your claim and allow you to be compensated for your suffering based on medical records and your personal testimony.
Burns
Another type of injury that can occur from a premises liability accident is various degrees of burns to the body. First degree burns are considered more minor and affect only the skin, second degree burns reach deeper layers of the skin, and third degree burns are the most serious and can affect deep tissue beyond the skin layers. This can cause permanent damage and scarring, or possibly even surgery. Burns can affect you physically by causing lots of pain in that area beyond the time of the injury, and can be psychologically debilitating through lowered self-esteem, self-consciousness, and anxiety over the appearance of the burn. Depending on your occupation, this may also take a toll on your earning capacity. You are able to recover lost income by showing your regular pay stubs and W-2 forms, and to recover medical expenses or therapy sessions by showing their billing.
Contact 844-SEE-MIKE
If you or a loved one has been injured on someone else’s property, 844-SEE-MIKE can look at what happened and tell you honestly what we see in the claim. We are a Chicago-based injury firm representing individuals and their families across Illinois, and we prepare cases to be tried when an insurer will not deal fairly. You pay nothing unless we recover money for you. The information here is general and not legal advice about your specific situation.
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