Current Indiana Law on Premises Liability

Landowner’s Liability for Defective Condition of the Land or Dangerous Activities

An injured person can claim the landowner or business should be responsible for his/her injuries suffered upon the land caused by either: (1) a defective condition of the land, or (2) dangerous activities held upon the land.

Let’s first examine the most common type of premises liability case – a person who falls upon the land owned or controlled by a person or business due to a “defective” condition of the land. This can include temporary conditions upon the land like: (1) ice or snow in a parking lot, or (2) liquids on the floor, or (3) wet or flipped up entrance mats. This is compared to permanent defective conditions of the land which can include: (1) uneven levels due to settling land, or (2) defective designs such as improper stair heights, or (3) lack of handrails where one is necessary to install.

An Injured Person Must Prove Negligence or Fault of the Landowner for Injuries Caused by Defective Conditions of the Land

Remember, in the last section, we discussed a negligence case requires the injured person to prove the business, corporation or other person who owned or controlled the land where the injury occurred committed “negligence.”

“Negligence” is a legal term that means the landowner or business “acted unreasonably under the circumstances.” A simple definition is that it was the landowner’s “fault” you fell (and not your fault).

Legally speaking, negligence cases occur when (1) a duty is owed by one business or person to another who enters upon their land, and (2) a breach of that duty occurs which (3) directly causes (4) damages by injuring another person.

So, in order to win a case, the injured person must prove:

1. Duty by Owners, Businesses, or Occupiers of the Land
2. Breach of that Duty
3. Causation (the breach caused the fall)
4. Damages (caused by the fall)

In summary, the fact that a person falls or is injured on land is not enough for a recovery of damages. The injured person must show a duty existed and that duty was breached. This is often described colloquially as proving “fault” by the landowner or business.

A further requirement under Indiana law is called “comparative” fault. This means that in order to recover ANY monetary damages, the injured person’s fault involved in the injury-producing event (a fall) must NOT exceed the fault of the landowner or business.

In other words, who had the best chance to avoid the problem in the first place?

A slip-and-fall or trip-and-fall case is really little more than an examination of the knowledge of the problem beforehand of the injured person versus that of the landowner.

The first step in proving fault is to determine what standard of care (the amount of care) the landowner owed the injured person in the first place. What duty was owed anyway?

Let’s examine the concept of “duty” as the first requirement to be proven.

Negligence Starts by Defining the Duty Owed by the Landowner to People Upon the Land

First, let’s examine the concept of “duty” for the landowner who possesses, controls or owns the land where the injury happened. Generally speaking, the owners/occupiers of that land have a duty to discover and fix (“remedy”) hazards of which they are aware or should have been made aware if they had performed reasonable inspections.

If the hazard (a hazard is a condition of land – not an activity – which has the potential to be dangerous) is known to the landowner/occupier, then the landowner must do one of two things to avoid breaching that duty: (1) he must remove or fix (remedy) the hazard, or (2) must place an adequate warning of the specific hazard to all coming onto the land.

Indiana Law Defines the Duty Owed as Based Upon the “Status” of the Person Upon the Land -- Invited, Permitted or Trespassers

Indiana follows the idea that the status of the visitor changes or defines the duty of the business or landowner owed to that visitor. In other words, the landowner must be only as careful as the permission extended to the person upon his land.

This sliding scale of care has followed over two centuries of English common law which defined the categories of visitors upon land as invitees, licensees, or trespassers.

Consequently, the status of a person entering another’s land in Indiana is defined in these same three general categories: (1) invitee (somebody invited upon the land such as a business customer); (2) licensee (somebody on the land with permission who does not benefit the landowner or business directly) and (3) a trespasser (somebody who is not permitted to be on the land but is there anyway).

This is important because the classification of the visitor’s status then defines the duty owed to him or her by the business or landowner. The ultimate case that describes the classes of people entering upon land and the respective duties owed to those individuals was found in Indiana Supreme Court decision in Burrell v. Meads, 569 N.E.2d 637 (Ind. 1991). Burrell ruled Indiana law adopted the legal definitions found in the Restatement (Second) of Torts, Sec. 343, to be the proper review of Indiana premises liability law.

A quick summary of the status and business or landowner’s duty is as follows:

• Status Duty Owed by the Business
• Invitee (includes customers)
• Must Use Reasonable Care to Social Guests Discover and Protect
• Licensee Must Warn of Hidden Dangers
• Must Avoid Reckless Acts
• Trespassers Must Avoid Intentionally
• Harming or Traps

As you can see above, the highest duty of care owed by a business or landowner is to invited guests, including social invitations, and customers. This care is defined as “reasonable care.”

Invitees are owed the highest duty of care, which requires the business or landowner to exercise “reasonable care” for the visitors’ protection while upon the land (who determines what is “reasonable?” That’s for the jury to decide and depends upon the evidence presented including building codes, safety codes, industry standards, internal safety guidelines of the business and witness testimony. See below).

Almost all customers will be considered “invitees” in any case handled at Shaw Law. Most slip and falls occur to customers. In fact, statistics have shown that 95% of all person injured on commercial property occurs as a result of a slip and fall upon hazardous conditions found on the land.

Sometimes, it is difficult to know the status of a person upon the land – especially with “licensees.” These are people who are permitted upon the land but do not benefit the landowner or business in any financial way. A good example of a licensee (who is owed less care than an invitee) would be a local charitable car wash on a property – the people working the car wash are there with the permission of the landowner, but only as a “favor” and do not bring any direct financial benefit to the landowner/business. A Court will determine the status of the person upon the land – either in pre-trial hearings – or at the trial of the matter.

Trespassers are easier to define, but determining what the landowner must have known and communicated as a warning is difficult sometimes to figure out. We can help with that determination.

Landowner or Business Must Know about the Problem

“Notice” of the defective condition or problem with the land is a hotbed of legal argument. Perhaps no other area of premises liability is contested to this degree (with the possibility of plaintiff’s own fault in not being careful at the time of the fall).

This requirement -- the landowner/business must have “known” about the defect/problem -- is the law in Indiana due to an advisory law book (now adopted in case law) known as the Restatement of Torts, Second, Sec. 343. This law book, written several decades ago by various lawyers and commentators, tried to define the legal liability of a landowner to persons injured upon his land: Sec. 343. A possessor land is subject to liability for physical harm caused to his invitees by a condition on the land, if, but only if, he:

• 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 invitees, and
• 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.

While it is true that proving the landowner “knew” about the problem beforehand might be difficult to overcome from an evidentiary standpoint, (after all, what prevents the landowner from saying “we didn’t know”) the law adds a more favorable analysis for invitees by allowing the injured person to prove the landowner “should have known” about the problem. This is called “constructive notice” under the law.

In other words, if the landowner/business denies knowing about the problem prior to the fall, the injured person might still be able to prove the landowner failed to take reasonable steps to discover it in the first place.

How does an injured person prove the landowner “should have known” about the defective condition on its land? Well, there is another important aspect of the law in favor of the injured person. And that is called “inspections.”

Landowner Must Perform Reasonable Inspections

The law is in favor of the person on the land in one major aspect – a landowner/business is required to inspect its land on a reasonable basis to check for defects and problems. A landowner cannot simply say “I did not know of the ice on my property” and bury his head in the sand.

What is “reasonable” amount and duration of inspections will depend upon all the circumstances of the case. For example, Wal-Mart, Inc. will probably be required to inspect more often and more thoroughly than a single proprietor because it has more employees it can devote to the task.

Another related favorable aspect of the law concerns “warnings.” If the landowner is knowledgeable about a defect and does not have time to fix it, then a warning is a required step to meet its standard of care.

A Landowner – While Knowing About the Problem – Still Must Have an Adequate Amount of Time to Fix It Before Being Found Negligent

Once discovered, the landowner/occupier must be given an adequate amount of time to fix or remedy the hazard. Even if the landowner did not perform adequate inspections and is determined that he “should have known” about the defect, the landowner/business can still escape liability if it is shown the problem could not have been fixed in a timely manner before the fall.

The question then becomes how long is too long to ignore a problem by the landowner before negligence is found.

Several Indiana cases have discussed the extent of a landowner business owner’s responsibility to clear areas such as sidewalks, parking lots, and common areas from natural accumulations of ice and snow. Bell v. Grandville Coop, Inc., 950 N.E.2d 747, 749 (Ind. Ct. App. 2011); See Hammond v. Allegretti, 262 Ind. 82, 311 N.E.2d 821 (1974); See Orth v. Smedley, 177 Ind. App. 90, 378 N.E.2d 20 (1978); See Rossow v. Jones, 404 N.E.2d 12, 14 (Ind. Ct. App. 1980); See Rising-Moore v. Red Roof Inns, Inc., 368 F. Supp. 2d 867 (S.D. Ind. 2005).

The duty to maintain the premises includes the removal of natural accumulations of ice and snow that exist upon sidewalks and parking lots. Hammond at 821; Bell at 750.

How Much Time Does a Landowner Have to Fix Ice and Snow?

Indiana law says it depends upon the length of time and circumstances. Compare the Bell ruling (3 days is too long with prior notice) to that of Rising-Moore, where the 7th Circuit affirmed a Defendant’s motion for summary judgment because there was no duty to continuously monitor and clear a parking lot where a visitor to a hotel fell during a freezing rainstorm that started 5-20 minutes earlier. The ruling was that no jury could have found that defendants breached its duty to the plaintiff to clear ice and snow where the time frame involved was a matter of minutes and the weather situation was still developing. Id. at 874.

Consequently, one can surmise that breach of a duty by a business landowner does not exist if a storm is brewing and the fall happens a matter of several minutes after the beginning of the storm or during a storm.