BUSINESS PREMISES LIABILITY
In the most general terms, Restatement (Second) of Torts ‘343 defines the duty of care owed by a business owner to its business invitees, and establishes that the possessor of land is liable to a business invitee if the possessor:
- knows or by the exercise of reasonable care would discover the condition,
and should realize that it involves an unreasonable risk of harm to such
- should expect that they will not discover or realize the danger or will fail to
protect themselves against it, and
- fails to exercise reasonable care to protect them against the danger.
(from Harris v. Niehaus, 857 S.W.2d 222 (Mo. banc. 1993)
Because of these implied assurances, the invitee is not required to be on the alert to discover conditions which, had they been a mere licensee, they might have been under a duty to discover. As such, business owners must recognize that the visitor invitees are less likely to discovery dangerous conditions simply because, as an invitee, they have been lulled into a sense of security.
Ultimately, the issue is not whether the business owner actually did discovery the defect, but rather whether the business owner could have discovered and corrected the defect. Invitees are essentially only owed warning about known defects, while invitees are /owed a duty to discover and correct latent defects.
In Sheil v. TG&Y Stores, 781 S.W.2d 778 (Mo. banc 1989), the Missouri Supreme Court cited the notes to ‘343, and said that:
To the invitee the possessor owes … the additional duty to exercise reasonable affirmative care to see that the premises are safe for the reception of the visitor, …. and to give such warning that the visitor may decide intelligently whether to accept the invitation….
It should be added that a companion case, Moss v. National Supermarkets, 781 S.W.2d 784 (Mo. banc 1989), extends these standards to the parking lot, holding:
The parking lot is an integral part of the store, maintained to attract customers, and the duties of the store owner with regard to the parking lot are essentially the same as those that relate to the inside of the store.
The decision in Smith v. Dewitt and Associates, Inc., 279 S.W.3d 220 (Mo. App. S.D. 2009) teaches that business premises liability claims are based on four principles:
- A dangerous condition existed on the premises that poses an
unreasonable risk; and
- The landowner knew or should have known of the condition; and
- The landowner failed to remove or warn of the danger; and
- The invitee was injured.
In other words, simple general negligence principles create liability when there is:
- A duty by the landowner to protect the plaintiff from injury; and
- A failure to perform the duty; and
- Injury to the plaintiff caused by the failure.
A duty of care arises out of circumstances in which there is a foreseeable likelihood that particular acts or omissions will cause harm or injury. (Smith at 222.)
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The scope of that duty is measured by whether a reasonably prudent person would have anticipated danger and provided against it. (Smith at 222.)
Some duties arise by changing circumstances — a spill of a slippery product for example.
Other duties may be established by accepted standards. For example, ASTM Standard F-1637-02(5) requires that walkway surfaces be slip resistant under expected environmental conditions and surface qualifying as interior, if not slip resistant when wet, should be maintained dry at all times. ASTM standards require business possessors to react to reasonably foreseeable conditions.
In addition, general negligence principles can also apply to the conduct of the employees of the business, requiring them to act to remedy dangers.
To analyze the best approach to proving business premises liability, advise and action should be sought from a Rolla premises liability lawyer familiar with complex business premises liability law.
By: Joseph W. Rigler
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