Premises liability litigation and the need for experienced legal counsel, P.2

In our last post, we began looking at the principles of assumption of risk and comparative fault in premises liability cases. In the state of New York, premises liability is based on negligence, which is the failure to carry out a legal duty owed to another.

While some states make premises liability dependent on the classes of persons who are on the premises—whether they are invitees, trespassers, licensees—New York law focuses more on reasonableness of conduct under the circumstances of the case. Speaking generally, though, a landowner or business owner will be liable when he or she created a dangerous or defective condition which causes an accident or when he or she had notice of the condition and failed to take action to address it in a reasonable amount of time.

Notice of a dangerous condition may be either actual or constructive, the difference being that constructive notice may be found when a specific defect in the property is visible and apparent and exists for a long enough time that the property owner should have discovered it and taken steps to address it.

A plaintiff who is able to establish either the creation or notice of a dangerous condition on property places the burden on the property owner to disprove or minimize his or her liability. As we mentioned last time, assumption of risk and comparative negligence are two ways to do this. In our next post, we’ll look at some of the other defenses property owners may raise in premises liability cases.