Tuesday 28, Nov, 2017

Understanding Landowner Liability In Illinois

Two million people a year are seriously injured after they fall on unsafe floors. Millions more are hurt because they slip on outside surfaces that have not been properly de-iced or that are poorly illuminated during non-daylight hours. Owners must also take care that persons aren’t injured because of swimming pools, animals, and other conditions that are not inherently dangerous but could present possible hazards. In many situations, owners are even liable for damages for the criminal acts of third persons, e.g. a patron who is injured in a bar fight that got out of hand because of the owner’s inadequate security.

Duty of Care

To determine duty, many jurisdictions still use a classification system rooted in English common law. This system divides victims into trespassers (people who are on the land without permission), invitees (people who the owner “invited” onto the land), and licensees (a rather nebulous category that’s somewhere in the middle).

Because the classification system is rather confusing and unwieldy, many states have abandoned it in favor of a more general duty of care. That’s what Illinois lawmakers did when they passed the Premises Liability Act in 1994. This provision prescribes a duty of care and defines it in negative terms. The owner is not liable for damages if:

  • They Are Open and Obvious: The owners are immune from negligence lawsuits if the dangerous conditions “are known to the entrant, are open and obvious, or can reasonably be expected to be discovered by the entrant.” As a practical matter, this element ties into the contributory negligence defense that’s discussed below.
  • No Knowledge Exists: If the owner is not aware of the latent or obvious defect, the owner has no duty to warn entrants about said hazard.

Moreover, owners have no duty to warn victims about the potential consequences of property misuse.

Establishing Liability

Victim/plaintiffs have the burden of proof in negligence cases, so they must establish, by a preponderance of the evidence, that the owner knew about the hazard or potential hazard. In most cases, plaintiffs must use circumstantial evidence to prove constructive knowledge (the owner should have known about the danger), and the rule in these cases comes from Anjou v. Boston Elevated Railway Company. In this 1911 case, the owner denied liability after a patron slipped on a banana peel, claiming lack of knowledge. But the court took note of evidence that the peel was black, dirty, and flat, and concluded that the peel had been on the floor for a while. Therefore, the owner had constructive knowledge of the hazard. That same analysis applies in all other premises liability cases, because the longer the hazard existed, the more likely courts are to find constructive knowledge.

Contributory Negligence

Especially if the hazard was in fact open and obvious — like a wooden palette left in a department store aisle — jurors must divide fault between the owner and victim. The judge then apportions damages based on that finding, because Illinois is a modified comparative fault state with a 51 percent bar. So, if the jury divides fault 60-40 between the owner and victim, the victim would receive 60 percent of the damages. However, if the jury divides fault 50-50, the victim gets nothing.

Rely on Experienced Attorneys

Owners are generally responsible for injuries that occur on their property. For a free consultation with an aggressive Chicago personal injury lawyer, contact Arami Law today. Home and hospital visits are available.

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