Premises Liability Research Articles

Premises Liability

During a game organized by a not-for-profit youth softball association in which adult coaches participated as players, the Plaintiff was injured when the first-base bag gave way under his foot. The Association filed a motion for summary judgment in which it maintained that it did not breach the duty of care owed to the Plaintiff.

Litigation involving patients with slipped capital femoral epiphysis

BackgroundSlipped capital femoral epiphysis (SCFE) is a hip disorder of late childhood and adolescence. Litigation involving SCFE may occur, as it is frequently diagnosed late, and/or may be temporally related to an injury. The purpose of this study was to review litigation cases involving SCFE in the US, focusing on the type of litigation (professional, premise, or product liability), the outcome of the litigation and indemnity payouts. MethodsCases of litigation involving SCFE were identified using 5 legal databases and Google Scholar searching for the term “slipped capital femoral epiphysis”. These databases originated as early as 1973. The data collected was the alleged complaint, type of defendant, outcome, state where filed, and amount of indemnity payout. Payout amounts were converted to 2020 US$. Statistical analyses were performed with SYSTAT® 10 software. ResultsThere were 135 unique cases identified which involved professional liability (103), premise liability (30), both premise and professional liability (1), and product liability (1). Complaints for professional liability cases were alleged failure in diagnosis (71), inappropriate treatment (14), both diagnosis and treatment (12), and others (7). The delay in those with an alleged late diagnosis (37 cases) was 5.8 months. The three most common specialties named as defendant(s) were primary care (31%), orthopaedic surgeons (29%), and radiologists (16%). The primary allegations against non-orthopaedic surgeons were failure in diagnosis (89%) as opposed to orthopaedic surgeons where the complaints of alleged failures in diagnosis and inappropriate treatment were equal (50%). The geographic region of the filed cases was the Northeast (44%), South (24%), Midwest (16%), and West (16%). There were no differences between premise and professional liability cases by geographic region. The overall outcome was favorable for the defendant(s) in 53% and the plaintiff in 47%; the defense prevailed in 60% of the professional liability but only 33% of the premise liability cases. The indemnity payout amount (for the 52 cases where known) averaged $1.28 million. Payout was higher in the complaints for professional compared to premise liability ($1.5 vs. $0.9 million). The average payout for those with and without avascular necrosis was $2.97 million vs. $1.02 million. For the professional liability claims, indemnity payout was most frequent in the Western US. It must be remembered that this study only represents law suits filed in the US court system. It does not include cases that might have been resolved prior to any legal action as those cases are not publicly available. ConclusionsReported litigation involving SCFE patients involved claims of professional liability in 77% and premise liability in 22% of located cases. Due to significant exposure, this study should serve as a reminder to all health care providers to include SCFE in the differential diagnosis of knee/thigh pain in adolescents.

Real Property

This Article covers Real Property cases from Southwestern Reporter (Third) volumes 633 through 652 and federal cases during the Survey period that the authors believe are noteworthy to the jurisprudence on the applicable subject. A number of significant cases, mostly from the Texas Supreme Court, have been handed down during this survey period. The due process requirements for the scope of inquiry for substituted service have been promulgated in MAP Resources. Additional procedural issues for service on financial institutions, which were decided differently by various state and federal courts, were resolved in Moss. The Texas Supreme Court provided helpful guidance on the measurement of consequential damages in Signature, and offered a cautionary tale to practitioners about the drafting of consequential damage waivers in James. In another cautionary tale to practitioners, the Tyler Court of Appeals in Tiner addressed the enforceability of a fixed price 100-year option contract. Likewise, in Rancho Viejo, following guidance from the Texas Supreme Court, the San Antonio Court of Appeals narrowly interpreted a restrictive covenant to allow construction of a solid waste facility. The narrow interpretation of restrictive covenants was again reiterated by the Texas Supreme Court in JBrice. The supreme court has also addressed, in a case of first impression, the issue of implied revocation of an outstanding offer in Tauch. In premises liability cases, it also discussed the “dual capacity” for successor liability in Eagleridge, and the “necessary use” doctrine in Sandridge. The Texas Attorney General issued guidance on the meaning of “person” for purposes of nonjudicial foreclosures. Unfortunately, the limitations period for equitably subrogated lien claims, under Howard I and its prodigy, continued in Howard III. From a governance perspective, the Texas Supreme Court refined the fiduciary duties of directors in the Poe decision. Regulatory takings were addressed in Schrock, but with significant possible changes in jurisprudence raised in the concurring opinions. Additionally, the Texas Supreme Court jumped on the Dallas to Houston highspeed train project in defining an interurban electric railway.

Litigation involving sports-related spinal injuries: a comprehensive review of reported legal claims in the United States in the past 70 years

Sports-related spinal injuries can be catastrophic in nature. Athletes competing in collision sports (e.g. football) may be particularly prone to injury given the high-impact nature of these activities. Due to the oftentimes profound impact of sports-related spinal injuries on health and quality-of-life, they are also associated with a substantial risk of litigation. However, no study to date has assessed litigation risks associated with sports-related spinal injuries. A better understanding of the risk factors surrounding these legal claims may provide insights into injury prevention and other strategies to minimize litigation risks. In addition, it may allow the spine surgeon to better recognize the health, socioeconomic, and legal challenges faced by this patient population. To provide a comprehensive assessment of reported legal claims involving sports-related spinal injuries, including a comparative analysis of legal outcomes between collision and non-collision sports. To discuss strategies to prevent sports-related spinal injuries and minimize litigation risks. Retrospective review. Athletes experiencing spinal injuries during sports. Outcomes included verdict outcome (defendant vs. plaintiff), legal claims, injuries sustained, clinical symptoms, and award payouts. The legal research database Westlaw Edge (Thomson Reuters) was queried for legal claims brought in the United States from 1950 to 2021 involving sports-related spinal injuries. Verdict or settlement outcomes were collected as well as award payouts, time to case closure, case year, and case location. Demographic data, including type of sport (ie collision vs. non-collision sport) and level of play were obtained. Legal claims, spinal injuries sustained, and clinical symptoms were also extracted. Furthermore, the nature of injury, injured spinal region, and treatment pursued were collected. Descriptive statistics were reported for all cases and independent-samples t-tests and chi-square tests were used to compare differences between collision and non-collision sports. Of the 840 cases identified on initial search, 78 met our criteria for in-depth analysis. This yielded 62% (n=48) defendant verdicts, 32% (n=25) plaintiff verdicts, and 6% (n=5) settlements, with a median inflation-adjusted award of $780,000 (range: $5,480-$21,585,000) for all cases. The most common legal claim was negligent supervision (n=38, 46%), followed by premises liability (n=23, 28%), and workers' compensation/no fault litigation (n=10, 12%). The most common injuries sustained were vertebral fractures (n=34, 44%) followed by disc herniation (n=14, 18%). Most cases resulted in catastrophic neurological injury (n=37, 49%), either paraplegia (n=6, 8%) or quadriplegia (n=31, 41%), followed by chronic/refractory pain (n=32, 43%). Non-collision sport cases had a higher percentage of premises liability claims (41% vs. 11%, p=.006) and alleged chronic/refractory pain (53% vs. 28%, p=.04). Conversely, collision sport cases had a higher proportion of workers' compensation/no fault litigation (23% vs. 4%, p=.03) and cases involving disc herniation (29% vs. 9%, respectively; p=.04). Sports-related spinal injuries are associated with multiple and complex health, socioeconomic, and legal consequences, with median inflation-adjusted award payouts nearing $800,000 per case. In our cohort, the most commonly cited legal claims were negligent supervision and premises liability, emphasizing the need for prevention guidelines for safe sports practice, especially in non-professional settings. Cases involving athletes participating in non-collision sports were significantly associated with claims citing chronic/refractory pain, highlighting the importance of long-term care in severely injured athletes.

Commercial Premises Liability in Nigeria: the Need for Business Owners to Observe Due Diligence

What do you know about commercial premises liability? Do you know that Business owners generally have an obligation to keep property in a reasonably safe condition, so as to avoid injuries to customers or other individuals? What are the types of commercial premises liability? Is it everyone that enters a premises can sustain an action for commercial premises liability claim? What determines who can make a claim for commercial premises liability? What does a claimant need to prove to succeed in an action for commercial premises liability? Is there any available defence for the defendant in commercial premises liability claim? Safeguards against commercial premises liability claim The writer has done an exhaustive perusal on commercial premises liability in Nigeria and the need for business owners to observe due diligence. To know more, you can start reading this article.

“Place or Character” of a Business: Environmental Criminology and Negligent Security Litigation

This paper describes the use and application of environmental criminology and social science methods in court cases involving allegations of negligent security. Negligent security is an area of premises liability that involves claims against business owners for damages or injuries on their property due to a lack of security precautions against reasonably foreseeable criminal actions. For decades, courts have embraced the view that the “place or character” of a business may invite criminal conduct and various jurisdictions have asserted that business owners may be under a duty to protect patrons against third-party criminal conduct. Yet, courts have struggled to define precisely how the place or character of a business would make a crime reasonably foreseeable. The paper explains the ways in which courts utilize crime and noncrime data in negligent security cases and discusses the affinities between environmental criminology and expert evidence in the courts. In doing so, the paper highlights the practical application, legal utility, and explanatory power of criminological theories and social science knowledge in the U.S. civil court system.

When a corporation rapes: perceptions of rape in civil court for corporate defendants

ABSTRACTIn recent years, the coupling of poor outcomes for rape victims in criminal court and the widening scope of legal responsibility for sexual assault has prompted plaintiffs to file civil suits for rape against corporations. Unfortunately, we know little about juror perception of civilly litigated rape against corporate defendants and most jury research involving corporate defendants concerns non-sexual injury cases (e.g. premises liability, automobile accidents). With the increasing number of corporations being sued civilly for rape, we need to understand how civil juries perceive these cases. The present study investigated mock jurors’ perceptions of a fictional civil rape trial against a hotel. Community members (N = 155) read one of three trial summaries: Civil rape trial against the alleged perpetrator, civil rape trial against a hotel, or criminal rape trial. Results indicate females have higher pro-plaintiff judgments than males in civil court, perceptions of greed typically associated with civil litigation apply to rape, and favorable plaintiff decisions are most likely against a corporate defendant. Also, mental models suggest mock jurors conceptualize criminal and civil rape cases against an individual similarly. We discuss our results in terms of psychological, legal and practical expectations when suing for rape.

When Words Are the Weapons: Using Tinker, Bell, and Premises Liability to Keep Schools Safe in a Digital Age

With Tinker nearing its golden anniversary, the Supreme Court has gifted the ruling with a possible continued relevance regarding its applicability in today’s off-campus student-speech world. As a result, both schools and lower courts continue to struggle with how to balance off-campus student speech with the problems it can cause on campus. This Article suggests for the first time that much of the confusion can be eliminated by utilizing a framework for analyzing off-campus student speech based on the well-rooted doctrine of premises liability coupled with relevant portions of Tinker and Bell. This approach calls for an emphasis based on the identity of the speech target. Such an approach not only ensures essential protections to student speech, but also safeguards the institution of education through protecting the most important aspects of the school environment: teachers and students.

The Utility of Mobile Eye Tracking Technology in the Forensic Analysis of Personal Injury

Early research on gaze patterns during human locomotion indicated that pedestrians tend to focus their gaze on the path 2 – 3 m ahead. More recent research in this area has utilized eye tracking technology to empirically assess eye movements during navigation in naturalistic environments. A similar approach to understanding personal injuries resulting in civil lawsuits has potential utility in the field of forensic human factors. The present study was conducted in the context of gathering empirical data to support expert opinions in a premises liability civil suit. Using a mobile head-mounted eye tracker, the gaze patterns of five individuals was assessed as they walked two paths covering the area where the plaintiff in the subject suit was injured. The results of this analysis indicated that, consistent with previous research, participants fixated the path ahead. Additionally, the duration of fixations on their final destination tended to be longer than fixations on other objects or areas in the forward view. The present study demonstrates the utility of empirical analysis of conditions surrounding a personal injury using eye tracking technology.

Products Liability Harmonization: A Uniform Standard

Among industrialized nations, the United States is unique in addressing tort law at the state rather than the national level. For example, Australia and Canada, which share a common-law heritage with the United States, have federal tort systems. The United States approach may be appropriate in some tort settings, such as in the premises liability or motor vehicle accident context (not involving a claim of products liability), where the state rule’s impact remains within that state’s geographical boundaries. Unlike the simple 'fender-bender', which occurs within the borders of one state, the typical product is manufactured and marketed nationally or internationally. Therefore, several factors suggest that uniform federal treatment of product liability laws may be a more desirable means of regulation.

A 'Duty to Mitigate?' Civil Claims Against Liquor Establishments for Sexual Assaults Under Existing Premises Liability Law

This paper argues for imposing liability on establishments serving liquor under a premises liability theory when a victim has been sexually assaulted as a result of a tavern’s failure to provide an adequate level of care under a business’s duty to its invitees. It further suggests the creation of an affirmative duty to mitigate such sexual assaults through various preventative measures founded on a “reasonably foreseeable” standard of premises liability.

Understanding Agricultural Liability: Premise's Liability

This publication provides an overview of landowner liability and Maryland's recreational use statute. Topics covered will be negligence as it relates to trespassers, invitees, and licensees.

Institutes of Higher Education, Safety Swords, and Privacy Shields: Reconciling FERPA and the Common Law

In light of the Virginia Tech shootings, this Note argues that both FERPA and the common law contain internal tensions regarding safety and privacy that neither Congress nor the courts have adequately reconciled, and that important discrepancies regarding information sharing exist between IHEs' practices, the common law's demands, and FERPA's limitations. Part I provides background on FERPA and argues that FERPA's emergency exception is too narrow and confusing, so that IHEs default to the nondisclosure option rather than disclosing information to third parties, such as parents, when students threaten to harm themselves or others. At the same time, FERPA's tax dependent exception operates as an overly broad bright-line rule that, coupled with FERPA's lax enforcement mechanism, fails to adequately protect the privacy of students' education records. Thus, FERPA's emergency exception fails to ensure safety, while the tax dependent exception eviscerates the statute's privacy protection. Part II points out that, at the common law, courts have traditionally relied upon three competing strands of tort doctrines, each of which emphasizes either safety or privacy to the exclusion of the other. Thus, while the strand of premises liability uses safety as a sword and emphasizes foreseeability, the no strand of custodial relations and in loco parentis uses privacy as a liability shield. In the past, as the common law shifted from using safety as a sword to using privacy as a shield, FERPA responded. For example, as societal attitudes and the common law changed regarding alcohol use, Congress created a tailored exception allowing IHEs to notify parents when students violate laws or policies regarding the possession or use of controlled substances. Currently, another such shift is occurring, and courts are beginning to develop a concept of duty-based-on-the-facts as part of the special relationship between IHEs and students. As IHEs adopt public health models to address mental health issues on campuses, courts are using the safety sword to impose a duty on IHEs to use reasonable care to prevent foreseeable acts of harm to and by students, including suicide. However, FERPA has yet to respond to these increasing demands that the common law places on IHEs to share and disclose information about students' mental health. Part III proposes ways to resolve the tensions within the common law and FERPA regarding safety and privacy, as well as ways to align the duties the common law imposes on IHEs with the limits on disclosure that FERPA requires of IHEs. In reference to the common law, this Note argues that courts should create a coherent foreseeability framework specific to the mental health and IHE context, acknowledging the limits of foreseeability-especially for college and university personnel who are not mental health professionals-while balancing safety and privacy concerns. Part III also argues that Congress should amend FERPA to appropriately balance safety and privacy, specifically by broadening and clarifying FERPA's emergency exception while eliminating the tax dependent exception. Meanwhile, as these tensions within and between the common law and FERPA are resolved, the U.S. Department of Education should make several changes regarding the guidance it provides. This Note does not predict how future litigation related to the Virginia Tech shootings might proceed, attempt to assess fault, or argue that such tragic events are preventable. Rather, it highlights doctrinal and statutory developments that might impact where courts draw the line between safety and privacy within the context of questions related to the Virginia Tech shootings. In exploring these questions, this Note suggests how safety and privacy, as well as the common law and FERPA, might be reconciled, thereby charting a clearer course going forward. Note: This article first appeared in substantially similar form in 35 J.C. & U.L. 145 (2008).

Table of Contents

Abstract Cover Story Don't wait for crisis to hit your campus, pave way for clear communication now Don't take chances: Conduct crisis management review Flow chart makes it easy to visualize crisis response Don't hesitate to alert campus community You Be the Judge Should professor's due process claim be allowed to proceed? Of Counsel Make your institution about students, not self‐interest Training Tools Learn about how taxation rules apply to foundation‐owned dorms Take time to understand your state's real estate taxation laws Lawsuits & Rulings DISCRIMINATION — GENDER Graduate school's procedures fall short of Title IX requirements LIABILITY — TORT Graduate claims university interfered with job opportunities University not liable for parent's slip and fall injuries Tenn. Supreme Court allows premises liability case against TNU to proceed LIABILITY — CONTRACT Student not third party beneficiary to professor's employment contract, court rules ACADEMIC AFFAIRS — DISMISSAL Student expelled from doctoral program alleges discrimination ACADEMIC AFFAIRS — DISCRIMINATION Student fails to show he was treated differently because of race FINANCIAL AID — LOANS Student loans were not discharged without evidence of permanent disability DISCRIMINATION — DISABILITIES Student claims college discriminates in work/study program, but evidence falls short PERSONNEL — DISCRIMINATION Poor performance, not age, reason for employee's dismissal PERSONNEL — FREE SPEECH Officer's charges against chief not protected speech ATHLETICS — FIRST AMENDMENT Press member strikes out on claim against NCAA JUDICIAL AFFAIRS — IMMUNITY University did not waive immunity by appearing before EEOC CAMPUS SECURITY — ADMINISTRATION Appeals court sets aside injunction for UDM and its Public Safety Department QUICK STUDY

Forensic Injury Biomechanics

Forensic injury biomechanics is the science that relates mechanical forces to disruption of anatomical regions of the human body. In this review, we introduce (a) how scaling techniques can be used to describe injury severity and probability of death; (b) how a simple ratio, the factor of risk, and more sophisticated injury risk functions can be used to determine the probability of injury; and (c) how injury criteria (also known as tolerance limits) are defined for the head and neck. Methods for establishing injury causation are then illustrated by real-world examples drawn from litigation involving motor vehicle collisions and slips, trips and falls. Those factors that distinguish litigation from basic and applied research are also discussed, including the criteria for admissibility of expert opinions and the level of certainty used as the basis for these opinions. The criteria that must be met to support opinions on causation at both epidemiological and individual levels are also noted. If the expert appreciates the difference between the demands of ligation and those of basic and applied research, expert opinion can play a crucial role in the decision-making process that characterizes litigation. Because forensic injury biomechanics is central to opinions on injury causation, and because causation is often the key to determinations of who is at fault, forensic injury biomechanics can be the deciding factor in many personal injury, products and premises liability, wrongful death, and criminal cases.

Risk Management Strategies for Avoiding and Responding to Sexual Assault Complaints

Risk Management Strategies for Avoiding and Responding to Sexual Assault Complaints

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Support group leaders offer numerous liability exposures for bariatric programs and surgeons ranging from general negligence and malpractice to unauthorized practice of law or medicine and defamation, and from HIPAA and the ADA to intellectual property and premise liability issues. Support group leaders may hold allied health or professional licenses, or may be lay persons with no training in medicine or any other related field that is encompassed in support group leadership. The nature of support groups necessarily includes discussions that may venture into areas that are outside of the licensure, scope of responsibility, or competency of the support group leader. Unauthorized practice, negligence, and malpractice, and the potential for them to lead to litigation or licensing issues are rampant.

The Tort of Negligent Enablement of Cybercrime

Michael L. Rustad and Thomas H. Koenig propose a new tort of negligent enablement which will hold software vendors accountable for defective products and services that pave the way for third party cybercriminals who exploit known vulnerabilities. At present, the software industry has externalized the costs of making code safe for its intended environment of use onto its end users through one-sided mass market agreements. The proposed negligent enablement tort fills the void left by the failure of contract law to give meaningful remedies for the unacceptably high levels of risk of computer intrusions due to defective software. The public policy rationale for imposing secondary tort liability on software publishers who aid and abet cybercriminals is to reduce the rate of cybercrime. The proposed negligent enablement tort draws upon wellestablished principles of the Uniform Commercial Code (UCC) Article 2 warranties, premises liability, and negligence-based product liability to construct a modified duty of care to produce safe software suitable for its environment of use. This Article examines the elements of duty, breach, causation, and damages for the proposed negligent enablement tort as well as defenses, procedure, and possible policy-based objections. © 2005 Michael L. Rustad & Thomas H. Koenig f Michael L. Rustad Ph.D., J.D., LL.M. is the Thomas F. Lambert Jr. Professor of Law and Co-Director of the Intellectual Property Law Concentration at Suffolk University Law School in Boston, Massachusetts. t Professor Thomas H. Koenig chairs Northeastern University's Sociology and Anthropology Department and is on the Executive Committee of its Law, Policy & Society Doctoral Program. We appreciate the editorial work and substantive suggestions of Chryss J. Knowles on this piece. Our research assistants, Shannon Downey, Kara Frato, John Hebb, and Conway Kennedy, worked diligently and creatively. Diane D'Angelo, a research librarian at Suffolk University Law School, provided us with extraordinary substantive assistance. Thank you also to the members of the Berkeley Technology Law Journal who contributed to the editing of this piece. BERKELEY TECHNOLOGY LAW JOURNAL

A Moving Target: Property Owners' Duty to Prevent Criminal Acts on the Premises

When do a landowners owe a duty to protect an individual on their property from the criminal acts of a third party? The answer to this question usually turns on whether the type of criminal act that occurred was foreseeable. Courts determine whether an act was foreseeable either by examining the totality of the circumstances or by demanding evidence of prior similar acts or some method of analysis that borrows from both approaches. This article addresses a variety of duty-foreseeability cases from around the country, paying particular attention to the three major decisions issued by the California Supreme Court in 2004-2005. Part I of the article traces the various pendulum swings of the California Supreme Court as it moves from a strongly pro-plaintiff to a moderately pro-defendant back to a moderately pro-plaintiff definition of duty in premises liability cases. The article particularly considers the impact of a shifting approach to duty, in which the legal analysis of foreseeability changes depending on whether the criminal assault is in the future, imminent or ongoing. The article then examines a number of in the tale that make it particularly difficult for courts to determine whether a particular criminal act was sufficiently foreseeable that landowners had a duty to the victim and may be liable for the resulting harm. Twist #1 is the tragically bizarre criminal act that causes injury. Twist #2 considers whether a landlord has a duty to prevent tenant-on-tenant crime, e.g., where both the attacker and victim were authorized to be on the premises. Twist #3 considers whether gang violence impacts the analysis of foreseeability in a different way than random crime. Taken together, these twists demonstrate that courts frequently find themselves in the untenable position of second guessing the reasonableness of property owners and their employees during an ongoing criminal act. Viewing the incidents in hindsight, judges tend to expand the landowners' duty, to the detriment of certainty and fairness in the law.

Stadium disasters in Africa: The case for crowd management

Managers of sport and recreation facilities have numerous legal duties. One of these duties is an obligation to take reasonable precautions to ensure safe activity programmes and facilities for all participants, spectators and staff. The responsibility of a facility manager to ensure the safety of patrons is known as premises liability. Considering the large number of fairly recent stadium disasters on the African continent, premises liability could arguably be regarded as ‘Africa's shame'. This paper reviews some of the major stadium disasters of the past decade, and also focuses on crowd management. It discusses some of the most effective principles and techniques of ensuring facility and spectator safety. The chief components that are addressed are facility design, capacity and access, security and emergency procedures, and training. Key Words: Safety, sport facilities, disasters; liability, crowd management AJPHERD Vol.10(2) 2004: 141-153