Premises liability litigation and the need for experienced legal counsel, P.1

Last time, we began looking at a premises liability case out in California involving an injury that occurred in a New York health club. One of the issues in that case, we noted, was whether the health club patron assumed the risk of injury by participating in an activity offered by the club. Another issue was comparative negligence, and whether or not the patron acted negligently in obtaining the injury.

When it comes to premises liability law, New York is a pure comparative fault state. In tort law, pure comparative negligence refers to a scheme whereby a court can acknowledge a finding of negligence on the part of the plaintiff and reduce any damages awarded in proportion to the plaintiff’s negligence in contributing to his or her own injuries.

This means that one of the defenses available to property owners and businesses in premises liability litigation is that the injured party acted negligently. New York law also recognizes assumption and risk as well, which is a slightly different principle. Assumption of risk is the principle that a property owner or business does not have a duty to protect a patron if the patron freely assumes a known risk. Assumption of risk is usually only applied in cases involving athletic or recreational activities.

Between comparative negligence and assumption of risk, then, businesses and property owners have two potentially significant ways to minimize their responsibility for accidents which occur on their property, and plaintiffs need to be aware of these possible tactics going into litigation. In our next post, we’ll take a step back and look at the basic elements of a premises liability claim based on allegations of negligence.