Premises Liability: Not Just Your Average Slip And Fall

When people hear the term “premises liability”, scenarios such as slip and fall accidents in the grocery store typically come to mind. The customer has a reasonable expectation that the store will not be an unsafe place to do his or her shopping. The storeowner has invited the public in to buy groceries and is responsible for maintaining a reasonably safe environment – free from concealed wet spots and slippery banana peels. But not all cases are as clear-cut.

Premises liability applies to a wide range of cases in which an entrant upon land sustains physical harm due to some dangerous condition on the land. These cases include:

  • Dangerous windows
  • Unguarded pools
  • Falling trees
  • Defective roadways
  • Open elevator shafts
  • Hidden steps
  • Unsafe worksites
  • Negligent security

Generally speaking, under Pennsylvania law following the Restatement (Second) of Torts, a possessor of land owes a duty of care to those entering the land, and the nature of that duty depends on whether the entrant is a trespasser (unconsented entrant), licensee (permitted visitor – e.g. social guest), or invitee (business visitor). The lowest duty, owed to an adult trespasser, is to avoid willful and wanton misconduct. Next, the possessor may be liable to a licensee for failing to exercise reasonable care where the possessor, not the licensee, has actual or constructive knowledge of a hazard. With invitees, a possessor actually has an affirmative duty to conduct a reasonable inspection of the premises to discover any hazard.

A recent premises liability case in Philadelphia, involving a little girl who sustained a traumatic brain injury when she fell from a third-story bedroom window onto the concrete below, demonstrates that premises liability cases can be complex and involve many parties beyond the premises owner. The three year old girl was with her mom visiting family residing in an affordable housing complex in North Philadelphia. When playing with her cousins in an upper bedroom, she climbed onto a deep window sill from a bunk bed positioned near the window and either fell or was pushed through the open, unguarded window. The child survived the tragedy but required a series of operations for her fractured skull and will continue to require ongoing care for permanent injuries, the full extent of which are still not known.

Investigation into the incident revealed facts which supported a negligence claim against many premises defendants based on their collective failure to protect the window with a fall prevention device (window stop or guard) or, alternatively, move the bedroom door so that the bunk bed could have been positioned on a non-windowed wall:

  • The premises was certified for occupancy just months before the incident after undergoing a lengthy renovation project, during which bedroom and other windows were replaced and the bedroom door wall was reframed to accommodate HVAC
  • All those involved in the project – owner, developer, project manager, general contractor, subcontractors, superintendent, and architect – knew that young children were occupying the premises including the third floor bedroom
  • The premises defendants had actual or constructive knowledge that, given the tight room layout, a bunk bed was positioned in its most logical place in front of the window (where it was always positioned pre-project and where the general contractor positioned it after the project), thereby providing easy window access to the typical curious child, as detailed in numerous industry studies seemingly ignored by the defendants.

With the help of a window safety consultant and architect expert, attorneys Kenneth M. Rohtweiler, Nany J. Winkler and Todd A. Schoenhaus successfully argued that, despite passing inspections, the premises defendants owed a duty to their licensee client to go above and beyond minimum building standards to safeguard the hazardous bedroom window. Shortly before the start of trial, the attorneys were able to settle Plaintiff’s case for over $5.5 million.

“We are extremely pleased to be able to help this little girl and her family and see that she receives the appropriate medical care and ongoing support she will need,” said attorney Todd A. Schoenhaus. “The incredible tragedy here is that a little girl was terribly injured, despite the fact that multiple actors[—property owner, property manager, contractors, construction superintendent, project architect, window supplier and installer—]all had it within their power to see to it that something as simple as a $5 window guard was installed and, instead, did nothing.”

This recent case demonstrates that not all premise liability cases are simple slip and falls. Some can be complex and involve catastrophic injuries jointly caused by many others. If you or a loved one has suffered harm on another’s premises, it is critical to have an experienced premises liability attorney on your side so that the incident can be fully investigated and all those bearing responsibility can be held accountable. Such an attorney can be found at the Law Offices of Eisenberg Rothweiler Winkler Eisenberg & Jeck, P.C. Please call (877) 638-0114 for a FREE initial consultation.

 



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