Premises liability? What's that?
Let's say that Edna Plaintiff is shopping in the produce section at her favorite grocery store. She's walking around the grape display when suddenly she inadvertently steps on a stray grape that has fallen to the floor. Her feet go out from under her and she hits the floor hard, fracturing a vertebra and bruising her knee. She sues the grocery store on a premises liability theory. What happens?
Trichotomy: The Old System.
For decades upon decades, North Carolina followed the common-law premises liability system, which was ofter referred to as the "trichotomy." Under the trichotomy, which came to America as a product of ancient English law, a landowner's responsibility to visitors on his land depended on the status of the visitor. Visitors could fall into one of three categories - invitees, licensees, and trespassers - and which category a given visitor fit into determined whether the landowner was liable for the visitor's injuries.
The first category was invitees. An invitee is classified as "one who goes onto another's premises in response to an express or implied invitation and does so for the mutual benefit of both the owner and himself." This is typically going to be something like a customer in a store; someone who's invited in to do business with the owner, thereby benefiting both the visitor and the owner. Invitees were owed the highest duty by landowners; the duty to use ordinary care to keep the property reasonably safe, and to warn of hidden perils or unsafe conditions that could be discovered by reasonable inspection and supervision.
The second category under the trichotomy system was licensees. A licensee was defined as "one who enters onto another's premises with the possessor's permission, express or implied, solely for his own purposes rather than the possessor's benefit. Think of a licensee as a social guest; someone allowed to be on the property rather than being invited, who is there for his or her own benefit rather than that of the landowner. Landowners owed licensees a relaxed duty; there were only obligated to refrain from doing the licensee willful injury and from wantonly and recklessly exposing him or her to danger. Basically, licensees entered the property at their own risk.
The final category was trespassers; folks who entered onto property without invitation or permission. With regard to trespassers, landowners only owed the duty to refrain from doing them willful or wanton infliction of injury. For these purposes, by the way, willful means that the landowner intentionally injured the trespasser. Wanton means that the landowner didn't necessarily intend to injure the trespasser, but acted with complete indifference as to whether his actions would result in injury.
Under the old trichotomy system, Edna would have at least had a fighting chance at recovering as an invitee in the store. She was there by implied invitation to shop, under circumstances that benefited both her and the store, and there's at least an argument to say that the store was negligent in allowing a stray grape to remain on the floor where it risked injury to shoppers. Simple enough, right? But as time went on, the trichotomy system was examined over and over again by North Carolina courts, and with each deciding case, the system got more and more convoluted and difficult to navigate. As the plot thickened, it became more and more difficult for courts to interpret the law in a way that allowed legitimately injured plaintiffs to recover, even when they were obviously injured at the fault of the defendant landowner.
For instance, imagine a social guest at someone's house after dark. The guest goes out onto the back porch, which is unlit, and falls down a staircase that leads into the backyard. The staircase is overgrown with mold and moss, it's very slippery, and there's no handrail. When the guest tries to recover from the landowner under the trichotomy system, the court's going to see that the guest is a licensee and the landowner wasn't reckless or wanton; at best, he or she is only guilty of garden-variety negligence. Despite this, the guest is going to be unable to recover because the landowner met his or her duty of care under the trichotomy system.
Eventually, courts throughout the United States began to ditch the trichotomy system in favor of a more streamlined approach. North Carolina finally encountered the opportunity to do this in 1998, in a case called Nelson v. Freeland.
Nelson v. Freeland: A New Landscape
In Nelson v. Freeland, the defendant Freeland asked the plaintiff Nelson to come by his house to pick him up for a work meeting. As Nelson walked onto the front porch, he tripped over a stick that Freeland had left lying there. Nelson tripped, sustained injuries, and ended up suing Freeland on a premises liability theory.
The trial court, applying the trichotomy analysis and correctly finding that Nelson was a licensee, held that Freeland was not liable because he hadn't acted willfully or wantonly allowed Nelson to be injured. (Sure, there's a great argument to say that Nelson hadn't merely been allowed on the property or even invited, but that he was explicitly asked to be there by the defendant, but I digress.) The Court of Appeals affirmed the trial court, again correctly finding that because Nelson was a licensee under the existing law, there was no liability due to lack of willful or wanton behavior.
The real fun began when the North Carolina Supreme Court got ahold of the case. After digging into the history and policy behind the trichotomy system, the strengths and weaknesses of the system, and the recent sea change in American premises liability jurisprudence and reasons therefor, the North Carolina Supreme Court finally said, "Enough is enough." The Court ended up abolishing the trichotomy model outright, replacing it with a new, streamlined system that relies pretty much exclusively on the more modern tort standard of negligence. The Court did away with any distinction between invitees and licensees, creating a new two-category system; lawful visitors and unlawful visitors (trespassers).
The new standard is this: landowners owe lawful visitors (licensees and invitees) a duty of care to (i) avoid exposing their visitors to unreasonable hazards, and to (ii) warn them of potential hazards that do exist.
How the new standard works.
Let's go back to the prior example. Edna's walking around the produce section when she steps on a grape, falls, and hurts herself. Since it no longer matters whether she's a licensee or invitee, the only question we need to ask is the question that all negligence-based claims revolve around; whether the store's employees acted as the fictional "reasonably prudent person" would have acted. If the answer is yes, then there is no negligence and no liability. If the answer is no, then there is negligence, and the store becomes liable for Edna's full measure of damages.
Now, is the question of reasonableness a loaded one? Yes, it is. The reasonably prudent person is, after all, a fictional entity, and courts have labored for centuries to define exactly what a reasonably prudent person would and wouldn't do. In a textbook slip-and-fall case like Edna's, we want to ask ourselves whether a reasonably prudent person would have (i) noticed the grape during the time that it was on the floor, (ii) picked the grape up, (iii) put out a sign to warn customers, (iv) presented the grapes in such a way that grapes could fall to the floor to begin with, and a host of other inquiries. The case law in this regard is organized enough at this point that determining liability is a pretty formulaic affair.
But what about more complicated scenarios, like when a landowner fails to reasonably predict and inoculate against the negligence of third parties? What about when a landowner fails to protect lawful visitors from unlawful trespassers or reasonably foreseeable criminal acts? These fact patterns are definitely more unpredictable, but the important thing to remember is that the central question revolves around reasonableness. If the reasonably prudent person would have acted differently, then you're looking at negligence. If the reasonably prudent person would have behaved the same way that the defendant landowner did, then there's no liability.
Other things to think about.
Remember always that North Carolina is a contributory negligence state, meaning that if you contribute to your own injuries in any way, then you can't recover from the defendant landowner. In slip-and-fall cases, the more common "contrib" defenses look like this:
- The plaintiff was wearing flip-flops or other open-toed shoes;
- The plaintiff was prescribed corrective lenses, but wasn't wearing them;
- It was raining outside, so the plaintiff should have foreseen that the floor would be slippery;
- The dangerous condition was so obvious that the plaintiff would have seen it if he or she were exercising due care; or
- The plaintiff was supposed to be using a cane, crutches, or a walker, and wasn't.
Contributory negligence is really, really easy to prove in slip-and-fall cases. If you fell down at a store and the Risk Management Department or liability carrier asks for a recorded statement, you want to think long and hard about whether you want to give it to them without a lawyer present. If you say the wrong thing, then you can kiss your claim bye-bye.
The other biggie to be aware of is the statute of limitations, which again is three years for negligence-based actions. That's nearly always going to mean three years from the date that the fall occurred. I've got an upcoming article on special rules for the statute of limitations; be sure to check it out when it goes up.
That's about it. If you have any questions, give me a shout. Walk carefully!