Premises Liability Considerations for Montanans Injured by Slip and Fall
The premises owner has a duty of ordinary care to keep its premises reasonably safe for all persons who foreseeably might come upon them. Moreover, the owner’s duty to use ordinary care applies to any activity or condition on the premises even if the danger is known or obvious to the plaintiff, unless the owner could not foresee the injury.
A line of Montana cases switched the focus on the injured party’s knowledge of the dangerous condition to the property owner’s exercise of ordinary care. E.g., Richardson v. Corvallis Pub. Sch. Dist. No. 1, 286 Mont. 309, 317, 950 P.2d 748, 753 (1997) (“[t]he test is always not the status of the injured party but the exercise of ordinary care in the circumstances by the landowner”) (citations omitted).
While a property owner is not an absolute insurer of the safety of his property, “a property owner’s duty to others is ‘to use that degree of ordinary care which reasonable persons would use under the same or similar circumstances.’” Richardson, 286 Mont. at 318, 950 P.2d at 754 (citations omitted).
In Richardson, the Montana Supreme Court reiterated its adoption of the Restatement (Second) of Torts § 343A, and held that “a duty may be owed though the condition is open and obvious if the land owner has reason to believe that despite the open and obvious nature of the condition, that injuries will nevertheless result.” 286 Mont. at 319, 950 P.2d at 755 (citations omitted).
The Montana Supreme Court has stated that “[a]lthough landowners are not insurers of the safety of their property…it does not follow that landowners can avoid liability by merely stating that they have never been in the room in question and that they were unaware of the alleged hazard. Such a holding would encourage landowners to avert their eyes and to maintain a state of ignorance as to the state of their property.” Welton v. Lucas, 283 Mont. 202, 207, 940 P.2d 112, 115 (1997).
In Welton, the Montana Supreme Court reversed a grant of summary judgment and reiterated that claims of ignorance of the dangerous condition will not preclude the case from being submitted to a jury: “questions of fact remain as to whether they should have been aware of the pipe and whether they should have provided adequate lighting in the cooler or rearranged the shelving.” Id.
Other Considerations for Montana Slip and Fall Cases
A Massachusetts decision, Sarkisian v. Concept Restaurants, Inc., shows how the theory of liability can work. In that case, the plaintiff filed suit against the owner of a nightclub after she fell and broke her leg on a wet dance floor. 32 N.E.3d 854 (Mass. 2015). The Massachusetts court concluded it was foreseeable that a party could be injured due to the conditions at the nightclub, which included allowing plastic cups on the dancefloor being jostled about by dancers. This created a foreseeable risk of injury to other bar patrons. As noted by the Massachusetts court, if the duty is focused on the nightclub patron versus the nightclub owner, then the nightclub owner “has scarce incentive to act reasonably, because the injured patron will seldom be able to discern the origin of the unsafe condition and, thus, satisfy the notice requirement under the traditional approach to premises liability.” Id.
Some courts allow for application of the “mode of operation approach,” which some states have utilized to find constructive knowledge on the part of the property owner. See Jasko v. F.W. Woolworth Co., 177 Colo. 418, 494 P.2d 839, 840 (Colo.1972) (holding that “when the operating methods of a proprietor are such that dangerous conditions are continuous or easily foreseeable, the logical basis for the notice requirement dissolves. Then, actual or constructive notice of the specific condition need not be proved”). Some cases have held that the existence of a spill and a fall automatically rendered the store owner liable. See Steven D. Winegar, Comment, Reapportioning the Burden of Uncertainty: Storekeeper Liability in the Self-Service Slip-and-Fall Case, 41 UCLA L.Rev. 861 (1994).
If you have been involved in a slip and fall case in Whitefish, Kalispell, Bozeman, Billings, Missoula, or anywhere in the state of Montana, you should contact a Montana personal injury lawyer like Philip McGrady for guidance.