I have spoken with and represented a number of people who were injued on commercial premises like Fred Meyer, Albertson’s, Home Depot, Burger King, and other stores, restaurants, and commercial properties. While most people think premises liability cases are a slam dunk, the law is actually rigged in favor of the premises owner and occupier.
Oregon’s law of premises liability follows the traditional rules which were imported from England by the common law courts. The plaintiff/ injured person is first classified as a invitee, a licensee, or a tresspasser. An invitee is someone who is on the property for the commercial or business purposes of the land owner or occupier, or who is on the property as part of an invitation to the general public. Customers at retail stores and malls are invitees because they are there for a business purpose and most malls are open to the general public.
The possessor’s duty to the invitee is to use reasonable care to make the premises safe for the invitee’s visit by inspecting the property to discover any unreasonable risks of harm, and to fix or warn about any unreasonable risks of harm which the possessor knew or should have known about. For “stuff on the floor” cases, the rules are a bit more refined, and the injured person has to show that the store put the stuff on the floor, knew it was there, or that it was there long enough that the store should have discovered it. Sounds like an OK set of rules. But the recent Oregon Court of Appeals cases interpreting those rules is possessor-friendly to say the least.
I developed a couple strategies for dealing with those issues, and I’ve dealt with enough commercial premises defendants to have a good idea of what cases are likely to win and what more needs to be done to make a winner. Premises liability is an area where knowing the right appellate cases and how to apply them can make the difference between a winner and a loser.