PREMISES LIABILITY-THE BURDEN OF PROOF
By Patti James, CLI




In an era when a jury finds a premises liable for injuries suffered by an elderly lady who spilled coffee in her lap, it may seem that a premises liability case is easy to prove. This is a misconception. The burden of proof, overwhelmingly falls on the plaintiff. If the case must be litigated, you will need all the evidentiary support you can gather.

There is an art to building a premises liability case. Whether it involves a crime during which, or as a result of, a person was injured, or whether it is a simple slip and fall, there are guidelines you can follow to put together a successful case. The following guidelines apply to cases where a crime was involved.

Initially, the legal investigator should identify the elements of the case. Define the reasons the premises is responsible for the damage or injury suffered by the victims. You must show that the damage or injury is the result of negligence on the part of the premises. Negligence, when used with respect to an owner of a premises, means failure to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition which the owner knows about or should know about in the exercise of ordinary care(1). That depends upon whether the owner or occupier acted reasonably in light of what he knew or should have known about the risks accompanying a premises condition(2). The failure of an owner to use ordinary care is proximate cause for the damage or injury. Proximate cause means that which, in a natural and continuous sequence, produces an event, and without which cause, the event would not have occurred(3). In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care should have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event. Ordinary care, when used with respect to an owner or occupier of a premises, means that degree of care which would be used by an owner or occupier of ordinary prudence under the same circumstances(4). Ultimately, you must convince twelve people that there was proximate cause for the damage, due to negligence on the part of the premises owner who did not exercise ordinary care. First, interview the victim (your attorney client's client). Insure that the victim was on the premises legally, as a tenant, invitee, or patron. Go through the incident step by step. Try to assist the victim with remembering, times, dates, surrounding circumstances, witnesses, and any small detail that may prove helpful.

Confirm that a police report was filed. Obtain a copy of the report and study the details. Speak to the investigating officer. Interview all witnesses named in the report. If any arrest has been made and a conviction carried out, try to establish the current whereabouts of the assailant. If incarcerated, that could be very beneficial to your case. Conduct a criminal background check. If the assailant is an habitual criminal, or has committed a prior crime on the premises you are investigating, the victim's chances of recovery are much greater. A criminal conviction is not a prerequisite for a civil lawsuit, but it is a tremendous benefit to the plaintiff.

Interview all witnesses who saw the crime scene just prior to, or immediately after, the crime occurred. Often times a witness description of a scene will have a significant impact on the case. For example: a witness may say, "The lock on that door has been broken for a week. I reported it, but nothing was done," or "The security guard was asleep in his car." both of these remarks show the possibility of easy access to an establishment or premises. The witness may be able to describe his own fears about the safety of a particular premises.

Obtain names of witnesses who may not be listed on the police offense report. A crime scene can be mayhem, and a good witness may have been overlooked in the confusion at the scene. Talk to anyone who might have knowledge of the crime or the circumstances leading to the crime that resulted in an injury to the victim. You never know what small piece of information could shed light on evidence that you can pursue, or may trigger a lead to another witness. You can never be too prepared, and you need to be aware of what any witness may say or may not be willing to say. If you feel that a particular witness will be beneficial to your case, stress that importance. Persuade the witness to give a deposition and make him feel that his court testimony is the key to your case and recovery for the victim. Most people can identify with someone who has been victimized, and are willing to help once they understand processes and procedures.

After you have taken statements and gathered verbal information, begin to build statistics and background information on the premises. Obtain, from your local police agency, offense reports on the physical location of the premises on which the crime occurred. These offense reports are public information. They do not contain specific personal information related to the victims or assailants. However, with a little investigative ingenuity you will uncover all the necessary information. Prepare a historic crime report on the property by going back three years prior to the date of the crime, and one year hence, if appropriate. Using this process, will show past occurrences of crime and that no steps have been taken by the premises to combat the problem. This is essential in proving proximate cause. Through these offense reports, you might locate a high profile, or particularly remarkable, crime. Search newspapers from the date the crime occurred for an article about the crime. Retain a copy of the article for your file. It will prove very helpful as verifiable evidence of past crime on the premises. You may come across a name, possibly even another victim's name, in the article. If so, locate and interview that person. If the victim was injured on the premises you are investigating, more than likely the person will be willing to help your client. Locate any other victims you learn of through offense reports, making every effort to interview and obtain statements. It is important to determine if any victim you locate is involved in pending litigation or is currently represented by counsel. If this is the case, you may need authorization from the victim's attorney before you conduct the interview.

Prepare a chart using the statistics you have gathered, to use as demonstrative evidence in court, and organize the information. Make it as simple and easy to understand as possible. List the year, month, type of crime, and number of times that particular crime occurred. When the chart is complete, it can easily be referenced (i.e. 1993-5 rapes, 3 assaults, 19 auto thefts, 5 possession of illegal substance). Break the statistics down as far as necessary (i.e. June 1993-1 rape, 0 assaults, 4 auto thefts, 1 possession, etc.) This is a very effective way to present the history of criminal occurrences at a particular location. If you find there is a history of recurring crime on the premises, and no steps were taken to deter the problem, it indicates negligence on the part of the owner. An owner who is unconcerned, or denies there is a problem, can positively affect the outcome of your case. Management and security personnel are sometimes required to file written reports when crime occurs on a property. Evidence that the owner had prior notice may be obtained through these reports. Police reports may also contain records of notice to an owner or his agent, when crime has occurred on a property.

If your research reveals very little, or no past history of crime on the premises concentrate on the circumstances and conditions immediately preceding the crime. Elaborate on every detail that would allow a crime to occur. If you find little or no history of crime, make it advantageous to your case by showing that the victim had no reason or cause to fear or anticipate an occurrence in which harm would come to him. Therefore, ordinary care on the part of the premises can be questioned.

Photograph and video the scene where the crime occurred, showing easy access to the property or area. "You must show that the damage or injury is the result of negligence on the part of the premises..." Ordinarily, by the time the legal investigator receives a premises liability case, quite a bit of time has passed, creating the possibility that the crime scene has been altered. It is still important to photograph the scene showing the changes. If police photographs were taken you may be allowed access to them. Police agencies vary on the regulations regarding public access to files and photographs.

Conduct a thorough study of the security provided by the premises owner or occupier. Many lawsuits in the past, have been based on lack of security that was advertised or verbally promised. Thus, many premises and property owners are no longer offering security. This is where on facet of ordinary care comes into play: Did the owner or occupier of the premises exercise ordinary care that would have prevented the activity or was it neglect that caused the injury or loss? It is important to show that the owner or occupier did not exercise ordinary care. Currently, as a result of the number of lack of security lawsuits, you will find that many properties, are not advertising or providing security. Rather, they employ what they refer to as "Courtesy Officers." These individuals are on the property, not to protect the tenants or visitors, but to protect the property itself. They are instructed to alert local law enforcement officers if there is a problem, and not attempt to handle the problem themselves. Determine what role, if any, the courtesy officer played during the criminal activity that caused your client's injury. Obtain a statement from the courtesy officer. Some of these individuals are frustrated or "wannabe" police officers who may say something that will help your case. On one case I worked, a courtesy officer told me that he had seen a suspicious looking person on the property and if he had been a police officer, he would have escorted him off the property. He described the individual, who turned out to be the assailant. It is important to ask why he did not report the suspicious person, whose responsibility it was to do so, and what the policies of his employer are in this regard. Determine if the courtesy officer or guard is employed directly by the premises or by contract with a security guard service. Ask the individual about his job description. Obtain a written copy of the job description, if one exists, and determine who wrote and originated it. The courtesy officer or guard may be willing to provide this information, if he believes it would help his cause.

Research and detail the cooperation or assistance of the premises employees before and after the criminal occurrence on the property. They may deny that there was any criminal activity that led to your client's injury due to fear of losing business, or not being able to secure leases on the property. This would be a blatant cover up for monetary reasons, and would leave a negative impression of the property owner in legal negotiations. Obtain as many statements from premises employees as possible regarding policies in reference to crime and what steps were taken when the crime in question occurred. Did they inform tenants or visitors that a crime occurred and advise them to use caution? If they did not inform them, attempt to determine why.

Prepare a profile on the property owner. Conduct background research and locate any other properties owned. Assess the amount of crime on those properties and compare the findings to the property you are targeting. Interview the property owner, if at all possible, though in most cases the owner will be inaccessible. Try to determine if the owner was aware of the high risk of harm associated with crime on the property. Attempt to uncover direct evidence that the owner knew of or should have known of the crime problem, due to the amount of crime, or length of time crime has been occurring on the property. What was the owner's attitude or role in deterring the crime? Was the crime condition obvious, or did the property look safe? Does the owner's budget allow for maintenance and less crime prevention? The answers could be essential in providing probable cause. If the owner is uncooperative or unconcerned, profile in that light. This may be a flamboyant character who drives flashy, expensive sports car, but one who will not approve expenditures necessary to ensure the safety of tenants or visitors to a property. No jury will have sympathy for this person.

Earlier, I suggested locating the individual who committed the crime which caused the victim's injury. Interviewing that person could be the most pivotal point in your case. On my most successful premises liability case, which resulted from a rape at an apartment complex, the plaintiff's attorney and I were permitted to interview, and later depose, the rapist at the institution where he was incarcerated. He actually told us that he would not have entered the property where he committed the rape if the property had been equipped with security gates or cameras. He was aware of the lack of security on that specific premises because, four years earlier, he had committed several rapes at the exact location. This immediately became a winnable case.

Following these guidelines, you should be able to build a solid case. Elaborate on any particular step that may have special application to your case. Be as thorough and detailed as need be. Building the case and substantiating your information will be very time consuming and tedious work. You will have plenty of time, however, as most of these cases take two or three years to get to trial or mediation. Most importantly, satisfy your objective: prove and produce the evidence that there was negligence on the part of the premises, and that ordinary care was not practiced, which in turn, led to the proximate cause of the damage or injury to your client.

Negligence: Failure to exercise that degree of care which a person of ordinary prudence would exercise under the same circumstances. The term refers to conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.

Ordinary Care: Care a reasonably careful person would use under similar circumstances. Diligence and exercise of good judgment.

Proximate Cause: That which in natural and continuous sequence unbroken by any new independent cause produces an event, and without which the injury would not have occurred.

This article first appeared in the newsletter of The National Association Of Legal Investigators, November 1995 issue and was adapted from CLI "White Paper." The article has also appeared in the newsletter of the Texas Association Of Licensed Investigators which the author is currently president of.

(1)Barrons Law Dictionary-Third Edition
(2)Eleventh Court of Appeals in Prudential Insurance Company of America v. Henson, 758 S.W.2d415 (Tex.Appl.Eastland 1988, no writ)
(3)Barrons Law Dictionary-Third Edition
(4)Eleventh Court of Appeals in Prudential Insurance Company of America v. Henson, 758,S.W.2d415 (Tex.Appl.Eastland 1988, no writ)

ABOUT THE AUTHOR
Patti James, CLI, is the current president of the Texas Association of Licensed Investigators, (TALI), and joined NALI in 1994. She may be contacted at P.O. Box 801871, Houston, TX 77280. (713)827-8542. FAX: (713)827-8775.

ABOUT THIS ARTICLE
This article first appeared as a white paper in the newsletter of The National Association Of Legal Investigators. It has also appeared in the newsletter of The Texas Association Of Licensed Investigators. NAIS thanks Pattie James, and NALI for permission to republish this article here.

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