In December of 2010, we obtained one of the largest jury verdicts recorded in Davidson County for a premises liability case. A premises liability case holds the owner of the property responsible for dangerous conditions that exist on the property that the property owner either knew, or should have known about and failed to fix it or make others aware of it. Premises cases are one of the most difficult cases in Tennessee. In almost every case, the property owner will blame the injured party for failing to exercise proper care. They require a tremendous amount of work and expertise. There are several elements you must prove to be successful in a premises case. This post will be limited to discussing one element that is often most difficult to prove – notice of the dangerous condition.
How to prove your premises liability case
To be successful in a premises case, you must establish (1) the owner or someone on behalf of the owner created or constructed the dangerous condition or (2) the owner had actual or constructive notice of the dangerous condition before the injury occurred. Actual notice is knowledge of the facts and circumstances of the dangerous condition. You can establish constructive notice of a dangerous condition if it existed for such a time that it should have been discovered through the exercise of reasonable diligence. It is not enough to establish that a dangerous condition existed. You must prove notice of the condition before the injury.
The “method of operation” or “common occurrence” theory of notice
Another method of establishing notice is the “method of operation” or “common occurrence” theory of notice. Under this theory, the courts look at (1) whether the condition created by the chosen method of operation constitutes a hazardous situation foreseeably harmful to others; (2) whether the owner used reasonable and ordinary care toward its customers; and (3) whether the condition created was the direct and proximate cause of the injury. There must be a pattern of conduct, a recurring incident or a general or continuing condition indicating the dangerous condition’s existence. For example, if there is an area where slick spots are known to be and are common in an area, an owner can be held to have notice of the condition. One Tennessee case found notice where a property owner knew there were repeated spills in an area. Another Tennessee case found notice where a person slipped on oil and grease left by buses that frequently came through the area and leaked these slippery substances on the pavement.
The law in this article is summarized from: Blair v. West Town Mall, 130 S.W.3d 761 (Tenn. 2004); Beske v. Opryland, 923 S.W.2d 544 (Tenn. Ct. App. 1996); Ogle v. Winn-Dixie Greenville, Inc., 919 S.W.2d 45 (Tenn. Ct. App. 1995).