A slip and fall personal injury refers to any injury occurring on the premises of another, usually a land owner or business proprietor, that was caused by some dangerous condition or activity existing due to the land owner or business proprietor’s negligence.
Generally, the elements of a negligence claim under Nevada law are: (1) that defendant owed plaintiff a duty of care; (2) that defendant breached that duty of care; (3) the breach was the actual cause of plaintiff’s injury; (4) the breach was the proximate cause of plaintiff’s injury; and (5) that plaintiff suffered damages.
The difference lies in the land or business owner’s duty and the Plaintiff’s responsibility, if any, for the injuries sustained. For example, a land or business owner is generally said to be under a duty to inspect and maintain his premises and warn of dangers he has actual or constructive knowledge of.
Premises liability, and slip and falls, occur most frequently in the following locales: 1) Elevators & Escalators, 2) Hotels, 3) Recreational Facilities Such as Sporting Events, 4) Amusement Parks, 5) Campgrounds & Parks, 6) Playgrounds, 7) Swimming Areas, 8) Restaurants and Taverns, 9) Schools, and, most commonly, 10) Stores.
This article is a general overview of slip and fall law in Nevada.
In the past, a land or business owner’s liability depended upon the status of the injured party; that is, whether the injured party was an invitees, licensee, trespasser or child. An invitee is a person the premises owner, usually a business, invites onto his property for the purpose of shopping, for example. A licensee another hand is one who pays admission to attend an event, such as a football game while a trespasser is one who is on another’s property uninvited and generally against the owner’s will. Generally, a land or business owner had a greater duty to those that paid to attend an event than those that are invited onto the premises in general while no duty was owed to a trespasser.
However, the Nevada Supreme Court adopted a doctrine of landowner liability independent of the status of the person injured upon the land and “free from the antiquated categorization which had been a remnant of the common law”. In enumerating the rule, the Nevada Supreme Court has stated:
“Landlords as other persons must exercise reasonable care not to subject others to an unreasonable risk of harm. A landlord must act as a reasonable person under all of the circumstances including the likelihood of injury to others, the probable seriousness of such injuries, and the burden of reducing or avoiding the risk. We think this basic principle of responsibility for landlords as for others ‘best expresses the principles of justice and reasonableness upon which our law of torts is founded.’”
Thus, succinctly stated, “an owner . . . of land must exercise ordinary care and prudence to render the premises reasonably safe for the visit of a person invited on the premises for business purposes.'”
Duty to Inspect, Maintain, and Warn
In general, in order to show that a land or business owner failed to protect the public from a hazard, the Plaintiff must show: (1) That the Defendant failed to make a reasonable inspection of the premises; and (2) that a reasonable inspection would have revealed the hazard.
The Nevada Supreme Court has stated that “‘an owner or occupant of lands or buildings who knows, or in the exercise of reasonable care should know, of their dangerous and unsafe condition and who invites others to enter upon the property owes to such invitees a duty to warn them of the danger, where the peril is hidden, latent, or concealed or the invitees are without knowledge thereof.'”
Therefore, the owner or occupier of land has a duty to an invitee to inspect the premises to discover dangerous conditions not known to him and to “take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement or use.
Hidden v. Obvious Dangers
In dealing with a hidden or latent defect as compared to an obvious danger, the Nevada Supreme Court has stated, “If a peril is hidden, latent or concealed, ordinary care requires an owner, with actual or constructive knowledge of the peril, to warn the invited guest who is without such knowledge. . . . On the other hand, if the danger is ‘obvious,’ ordinary care does not require a warning from the owner because ‘obviousness’ serves the same purpose.” Thus, where the danger is obvious, a plaintiff is barred from recovery, but “an invitee’s knowledge of a dangerous condition may not bar recovery if his mission justifies encounter of it”.
With respect to slip and falls, though the status of the person on the property is no longer relevant, the reasons for which a Plaintiff is on the premises when he is injured does matter greatly and, under some circumstances, a land or business owner may have no liability by statute where, for example, the person injured is on the property for recreational purposes. An example of such a statute is Nevada’s recreational use statute, which provides:
An owner, lessee or occupant of premises owes no duty to keep the premises safe for entry or use by others for crossing over to public land, hunting, fishing, trapping, camping, hiking, sightseeing, or for any other recreational purposes, or to give warning of any hazardous condition, activity or use of any structure on the premises to persons entering for those purposes, except as provided in subsection 3.
Subsection 3. This section does not limit the liability which would otherwise exist for: (a) Willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity. . . .
Therefore, pursuant to statute, unless willful or malicious failure to guard or warn against the dangerous condition can be shown, a landowner does not owe a duty even to inspect its property to persons who may enter for the recreational purposes within the scope of the statute.
According to Nevada law, willful misconduct is “. . . intentional wrongful conduct, done either with knowledge that serious injury to another will probably result, or with a wanton or reckless disregard of the possible results.” On one occasion, the Nevada Supreme Court defined willful misconduct as an act “that the actor knows, or should know, will very probably cause harm” and, with regard to mental state, “willful misconduct requires a consciousness that one’s conduct will very probably result in injury”. Thus, generally, deliberate intent to injure has been removed from Nevada’s definition of willful and a showing that the land or business owner was reckless or conducted himself with wanton disregard for the safety of others suffices to impose liability. An exception to that rule is where the conduct is based on malice. That is, to receive punitive damages the wrongful conduct must be done with “the deliberate intent to injure.”
The question remains, how do courts determine when a land or business owner’s conduct is willful? In general, courts apply a three-pronged test for determining willful misconduct is. Thus, the following elements must be satisfied to impose liability: “(1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril.”
To determine constructive knowledge courts use an objective standard which asks the question, would “. . . a reasonable [person] under the same or similar circumstances as those faced by the actor . . . be aware of the dangerous character of [the] conduct”?
Under certain circumstance, courts have imposed specific rules governing liability for injuries that occur on premises. For example, the Nevada Supreme Court has enumerated a very narrow rule that applies to sporting events and injuries that occur while the injured party is a spectator. With regard to Sports Facilities, for example, the “limited duty rule” applies:
“This rule places two important requirements on stadium owners and operators. First, the rule requires stadium owners and operators to provide a sufficient amount of protected seating for those spectators “who may be reasonably anticipated to desire protected seats on an ordinary occasion.” Second, it requires stadium owners and operators to provide protection for all spectators located in the most dangerous parts of the stadium, that is, those areas that pose an unduly high risk of injury from foul balls (such as directly behind home plate).”
Under Nevada law, a proprietor’s duty to take affirmative action to reasonably attempt to prevent the wrongful acts of third persons arises only where there is reasonable cause to anticipate such acts and the probability of injury resulting therefrom.
Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual.
The modern trend holds that foreseeability of a violent crime being perpetrated on a patron is not absolutely dependent upon notice of prior crimes of a similar nature occurring on or near the premises, but may also be determined from all of the circumstances present.
The location and character of a business, together with the past crimes committed on the premises, provides the requisite foreseeability to determine that the business had a duty to protect patrons from violent assaults in the business parking lot.
If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.
The legal duty owed the injured party is summarized in the Restatement (Second) of Torts, Section 344, which states: “A possessor of land who holds it open to the public for entry for business purposes is subject to liability to members of the public while they are upon the land . . . for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons.” Invitees who claim the possessor negligently failed to protect them from criminal acts must prove the essential elements of negligence.
The invitor (the possessor who opens the property to the public for business purposes) is subject to liability if someone (an invitee) on the premises is physically harmed by a third person because of the invitor’s failure to exercise reasonable care to: (1) discover that such acts are being done or are likely to be done, or (2) give a warning adequate to enable visitors to avoid the harm or otherwise protect them.
Thus, the legal duty to protect an invitee begins when the circumstances indicate possible criminal activity on the property. The courts characterize the rule in terms of foreseeability. Business owners’ liability commences when criminal conduct is the foreseeable result of the owner’s negligence.
The primary defenses available for slip and falls are: 1) Assumption of Risk, and 2) Contributory Negligence.
Assumption of Risk
The modern notion of assumption of risk has its roots in the Latin maxim volenti non fit injuria (“to one who is willing, no harm is done”) which was originally applied in Roman Law by validating the process in which a free citizen sold himself into slavery.
In modern times, assumption of risk is more commonly a rule of public policy, protecting business’ that would otherwise be subject to what one court deemed “unreasonable and often ruinous responsibilities.”
In order for the doctrine of assumption of risk to apply, the plaintiff must: (1) have knowledge of the facts constituting a dangerous condition; (2) the plaintiff must know the condition is dangerous; (3) the plaintiff must appreciate the nature and extent of the danger; and (4) the plaintiff must voluntarily expose himself to the danger.
One court explained the doctrine thusly, “The doctrine is predicated on the factual situation of a defendant’s acts alone creating the danger and causing the accident, with the plaintiff’s act being that of voluntarily exposing himself to such an obvious danger with appreciation thereof which resulted in the injury.”
As a practical matter, assumption of risk may be found expressly or implicitly. Express assumption of risk applies when the parties expressly agree in advance, either in writing or orally, that the plaintiff will relieve the defendant of his or her legal duty toward the plaintiff.
Furthermore, assumption of risk may be implied from the plaintiff’s conduct. Implied assumption of risk focuses not on the plaintiff’s conduct in assuming the risk, but on the defendant’s general duty of care. Therefore, an implied assumption of risk is found where a plaintiff has failed to establish a prima facie case of negligence by failing to establish that a duty exists.
Another way to find an implicit assumption of risk where the conduct of a plaintiff is itself unreasonable and thus negligent because the risk he assumes is out of all proportion to the advantage which he is seeking to gain. For example, if a plaintiff jumped 5 stories in pursuit of a wallet that fell over a balcony, it can be argued that he both assumed the risk of being injured and that he acted unreasonably. In such cases, a defendant can maintain both defenses.
Comparative & Contributory Negligence
Contributory negligence and assumption of the risk do not overlap; the difference lies in the fact that under a theory of assumption of a risk the Plaintiff exercise his own free will in encountering the risk while comparative or contributory negligence focuses on the Plaintiff’s negligent or unintentional conduct and, thus, the reasonableness of his conduct. As one court put it, “When one acts knowingly, it is immaterial whether he acts reasonably.”