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Introduction

Invitee or trespasser. HELMS & GREENE, LLC. When it’s all on the line. Introduction. Kirk Willis member. Invitee. Damages. Licensee. Trespasser. Duty. Duty. Duty. Control. With respect to condition of the premises, defendant can be found negligent if:. What creates the Duty?

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Introduction

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  1. Invitee or trespasser HELMS & GREENE, LLC When it’s all on the line Introduction Kirk Willis member

  2. Invitee Damages Licensee Trespasser

  3. Duty Duty Duty

  4. Control With respect to condition of the premises, defendant can be found negligent if: • What creates the Duty? • Control!

  5. Control Individuals Owner/occupiers of land Employee Land Owner

  6. Duty Create Duty Relationship Duty

  7. Five Basic Exceptions Landlord contracts to make repairs Landlord fails to advise of dangerous conditions Landlord retains part of the premises to control Landlord retains property, but access is necessary for lease contract Landlord makes negligent repairs

  8. Landlord-Tenant Relationship Section 92.153 provides landlord has a duty (without the necessity of a request by the tenant) to provide: A window latch on each exterior window A doorknob lock or keyed deadbolt on each door A sliding door pin on exterior sliding glass Security bars on each exterior sliding glass door A “keyless” bolting device and door viewer on exterior doors

  9. Invitee “Invitee” is a person who is on the premises at the expressed or implied invitation of the owner or occupier of the premises. An employee is always considered an “invitee” as a matter of law

  10. Licensee A “Licensee” is a person who is on the premises with permission of the owner but without an expressed or implied invitation.

  11. Licensee - Test General test for determining a licensee is as follows: • Whether a person is on the premises for his own convenience or for conducting business with someone other than the owner of the premises – “licensee”

  12. Licensee - Negligence With respect to condition of the premises, defendant can be found negligent if: • The condition posed an unreasonable risk of harm • Defendant had actual knowledge of the danger • Plaintiff did not have actual knowledge of danger • Defendant failed to exercise ordinary care to protect/warn

  13. Trespasser “Trespasser” – is a person on the property of another without any right, lawful authority or expressed or implied invitation.

  14. Attractive Nuisance “Attractive nuisance” doctrine suggests that an owner of property can be liable for bodily harm to young children who are trespassers if: • The condition maintained is one upon which owner knows, or should know, that young children will trespass • Owner knows, or should know, that young children will trespass • Children, because of their youth, do not appreciate the risk • The utility by owner of maintaining is slight relative to the risk

  15. Control Redinger and the General Contractor Statutory Duty Independent Contractors/Negligent Hiring and Retention Premises Security Cases Control of What?

  16. Recovery of four Defendant had actual or constructive knowledge of some condition on the premises Injury from condition General negative Foreseeable criminal acts

  17. Bad Idea Jumping off balcony into pool Frozen turkey

  18. Premises Constructive knowledge Actual knowledge

  19. Unreasonable Risk Tiger show NASCAR Janet Jackson

  20. Change in Status Duty is what… Jiffy Lube & Tube

  21. Duty by Statute To protect a particular class or persons From a particular type of harm Plaintiff is member of that class Plaintiff has suffered the particular type of harm intended to be protected

  22. Protection Statute Protect particular class From a particular class Plaintiff is member of class Harm contemplated

  23. Foreseeability Concerning Criminal Acts of Third Parties Two Prong Test: • Did the landlord realize (or should have realized) the likelihood that such an act would occur? • Did the landlord have reason to know from past experiences of the likelihood of the conduct which would have endangered the safety of invitees?

  24. Criminal Acts of Third Party Duty? Or No Duty?

  25. Independent Contractors Duty? Or No Duty?

  26. Affirmative Defenses New, Intervening, Interceding and/or Superseding Cause Unavoidable Accident (tornado) Open and Obvious Immunity (police officer) Limitations Damage Caps

  27. Affirmative Defense Intervening causes • Different harm • Extraordinary damage • Independent • Caused by 3rd party • Degree

  28. Unavoidable Accident Non human condition Act of God

  29. Open Obvious No duty to warn if open and obvious

  30. Immunity Governmental • Good faith • Acting in scope • Discretionary

  31. Damages Physical harm required

  32. Punitive Damages Punitive damages have been significantly limited by tort reform. But in action arising out of a criminal act of an employee, the employer may be liable for punitive damages if: The employer authorized the manner of the act The agent was unfit and the employer acted with malice in retaining her/him The employee worked in a managerial capacity and was acting in her/his scope of employment The employer ratified the act

  33. HELMS & GREENE, LLC When it’s all on the line Thank You Kirk Willis member kwillis@helmsgeene.com

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