Lapin Law Offices

Overview

If you are injured on someone else’s property you may have a premises liability claim. These types of claims can include dog bites, referenced elsewhere, slip and/or trips, assault and battery and many other different types of cases. In these cases, the possessor of the property usually is the responsible party, if there is one, although the owner may also have responsibility. For simplicity sake, this page will consider property owner’s and possessors as the “owner” unless otherwise provided.

Slip/ trip and falls case are usually very difficult cases to win and it is important to consult with a lawyer shortly after your fall to document the facts surrounding your injury. Here are some common things you should do if you are injured on someone else’s property.

A common misconception held by many people is that the person responsible for the property is automatically responsible for injuries that you might sustain while on their property. This isn’t true. Depending on the type of claim, there are different things you must prove to hold a property owner or possessor liable for your injuries. As in all personal injury cases, the burden is on you to prove that the property owner did or did not do something they should have to prevent an injury. You also must examine your own conduct in how the injury could have been prevented. In some cases, such as dog bites, proving fault is easy. In slip and fall cases on ice it is much more difficult. A landowner may be liable by either having a dangerous condition on their property or failing to warn of the dangerous condition. There is usually a balancing act between the duty and requirements imposed on a landowner and an injured person’s own action or inaction.

The most common premise liability cases involve slip or trips. An actual fall is not required if you can prove that the slip or trip itself caused you an injury. However, if you are assaulted by someone else on a landowner’s property, and the landowner should have expected that it could have happened, the landowner may have some responsibility.

Back to top

Status on Property

Generally, Nebraska recognizes two categories of injured persons involving property, with one having two subcategories: trespassers (children and adult) and lawful entrants. Furthermore, how the property is being used by the injured person also plays a factor. The word “condition” is used as it encompasses a number of dangers to a person. In most situations, you can substitute the word “condition” for the actual cause of your injury, like ice. A trespasser is any person who enters or remains on someone’s property without the express or implied consent of the landowner or lawful possessor.

Adult Trespassers

If you are an adult trespasser you must prove that the landowner’s action or inaction was a proximate cause of the injury. The landowner must have acted willfully (intentional and occurred with actual knowledge that a danger existed and that injury was a likely result), wantonly (intentional and occurred with reckless disregard of its consequences), or failed to warn the trespasser of a hidden danger or peril that the landowner knew about but that was unknown to and unobservable by the injured person in the exercise of reasonable care. For a failure to warn, the landowner must have either known or had reason to know you were on the property or that they should have known that trespassers constantly went onto the property.

Child Trespassers

The standard for a child trespasser is somewhat lower. For a child to recover, he or she must prove that there was a condition, such as a crack on a sidewalk, on the property, where the landowner: 1) knew or should have know that children were likely to go to; 2) the landowner knew or should have known about the condition and that is involved an unreasonable risk of death or serious injury to children; 3) the child, because of his or her youth, did not either discover the condition or realize its risk; 4) the usefulness of the condition or continuing to permit it to exist and the burden of eliminating the danger are slight as compared to the risk to the child; and 5) the landowner failed to eliminate the danger or otherwise protect children from it. This differs from adults as it takes into consideration the lower amount of knowledge, experience and care exercised by children and does not require a hidden danger.

Lawful entrants

Anyone other than a trespasser is considered a lawful entrant. You may gain lawful entry because you were expressly given a right, such as an invitation or purchased a ticket for admission, or implied. If you are a lawful entrant you must prove:

1. The landowner either created a condition, knew of the condition, or by the exercise of reasonable care, would have discovered the condition;
2. The landowner should have realized that the condition involved an unreasonable risk of harm;
3. The landowner should have expected that the injured person either would not discover or realize the danger or fail to protect themselves against the danger; and
4. The landowner failed to use reasonable care to protect the injured person.

Depending on the cause of an injury, these elements may be difficult to prove. The landowners knowledge about a condition and its danger depends on what the dangerous condition is. For example, if you slip on water, which someone spilled in a store, with tiled floors, that does not permit beverages, it is unlikely that the store would be held responsible because they would not have had enough time to know about the spilled water or expect it to be there. However, if someone spilled water and told a store employee about it then they would have notice. Element #2 is usually not that difficult to establish depending on what exactly was the dangerous condition. Arguments regarding this element often relate to the size of cracks on the ground and whether they are of sufficient size to have posed a danger. Element #3 again examines the danger and whether the landowner should anticipate its effect on people on the property. Finally, element #4 explores a number of factors to determine the landowners duty. These factors include: foreseeability or possibility of harm; the actual and expected purpose for which the property is being used; the time, manner and circumstances in which the property is used; the reasonableness of inspection, repair or warning; opportunity, ease of repair or correction or the giving or a warning; the burden on the landowner in terms of inconvenience or cost in providing adequate protection.

There are slightly different requirements if you are injured due to an activity on the property or the acts of a third person. For each of these you look at whether the landowners knowledge about the activity or conduct and its risks to other person’s on the property.

Back to top

Property Use and Ownership

Nebraska has a Recreation Liability Act, which provides protection to landowners who invite or permit persons to use their property for recreational purposes without the payment of a fee for its use. The main exception is if the landowner willfully or maliciously failed to guard or warn against a danger on the property. Recreational activity is statutorily defined as “hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, waterskiing, winter sports, and visiting, viewing, or enjoying historical, archaeological, scenic, or scientific sites, or otherwise using land for purposes of the user.”

There are other rules regarding public streets, sidewalks, roads and other types of property.

Claims involving a fall or other injury on property against a governmental entity are governed by either the Federal, State or Political Subdivision Tort Claim Acts. Generally, what you must prove against a governmental entity and private owner are the same, there are additional prerequisites for government claims. Click here for more information.

Back to top