By Andrew Kopon Jr., Michael A. Airdo, and Ryan L. Greely

Customers in retail establishments will slip and fall. Accidents in retail establishments can happen at any moment, and the surrounding circumstances of an accident may appear to be fairly straightforward. But if handled improperly, it can have devastating financial consequences for a landowner or occupier’s business. That need not be the case, however, if the defense of the ensuing premise liability lawsuit is skillfully handled from the start. If you own or manage property and serve the public, you need to be aware of potential liabilities on your premises and have a good strategy in place for avoiding lawsuits if possible, and successfully defending against lawsuits brought by customers that are injured on the premises.

The Kopon Airdo, LLC Retailers’ and Landowners’ Liabilities Manual is designed to help retail establishments, owners and managers of real property, and insurance personnel anticipate and address potential legal issues affecting premises owners and the retail industry.

Download the Retailers’ and Landowners’ Liabilities Manual for 2016

 

TABLE OF CONTENTS

I. INTRODUCTION

A. Negligence Claims in General 3

II. FOREIGN SUBSTANCES

A. Establishing Liability 6

1. Notice Not Required: Evidence of Defendant’s Negligence 7
2. Notice Required: Condition Caused by Third Party 9

a. Actual Knowledge 9
b. Constructive Knowledge 10
c. “Reasonable Care” of Landowner 11

B. Applying Notice Law to Store Policies and Procedures 14

III. DANGEROUS CONDITIONS

A. Establishing Liability 16

1. Open and Obvious Doctrine 17

a. Distraction Exception to the Open and Obvious Doctrine 18
b. Deliberate Encounter Exception to the Open and Obvious Doctrine 22

2. Open and Obvious – Expert Opinions 25
3. Open and Obvious – Children 25
4. What to take from the Open & Obvious Cases 27

B. Common Dangerous Conditions 28

1. Shelves 28
2. Floors, Floor Mats, and Carpeting 29
3. Stairs and Escalators 30
4. Parking Lots 32
5. Sidewalks 33
6. Ingress & Egress 34
7. Natural Conditions on the Land 35
8. Dangerous Conditions Created by the Business Owner 37
9. Cases Involving Miscellaneous Dangerous Conditions 38
10. The De Minimis Rule 40

a. Exceptions to the De Minimis Rule 41

11. What to take from the Cases involving Dangerous Conditions 42
12. Construction Statute of Repose 42

C. Applying Law on Dangerous Conditions to Store Policies and Procedures 45

IV. ACCUMULATION OF SNOW AND ICE

A. General Rule 46

1. Natural Accumulation & Safe Means of Ingress & Egress 48

B. Exceptions to the Natural Accumulation Rule 51

1. Voluntary Undertaking 51
2. Unnatural Accumulations or Aggravations of a Natural Condition 53

a. Parking Lots 53
b. Rooftops and Building Defects 56
c. Inadequate Lighting 57
d. Store Protocol Not Followed 57
3. Contractual Obligations to Remove Natural Accumulations 58

C. Residential Landowners and Occupants 59
D. Chicago City Ordinance 61
E. What to take from the Natural Accumulation Cases 61
F. Applying Law on Natural Accumulations to Store Policies and Procedures 62

V. MUNICIPAL IMMUNITY

A. Permitted and Intended Users 64

1. Alleys, Sidewalks, Streets, and Parkways 65
2. Recreational Property 67
3. Willful and Wanton Conduct 68
4. Special Duty Exception 69

B. Notice 70
C. General Conditions 71
D. What to take from the Municipal Immunity Cases 71
E. Applying Law in Cases in which Municipality is a Defendant 71

VI. AFFIRMATIVE DEFENSES

A. Contributory Negligence 72
B. Mitigation of Damages 73
C. Statute of Limitations 74

VII. PROPER INVESTIGATION PROCEDURES

A. Store Personnel 75
B. Claims Representatives 75
C. Recorded Statements 76
D. Collecting Evidence 76

1. Testimonial Proof and Witnesses 76
2. Documentary Proof 76
3. Demonstrative Proof 77

E. Large Loss Cases 77

VIII. CONTRIBUTION AND JOINT AND SEVERAL LIABILITY

A. Contribution 78
B. Joint and Several Liability 81

IX. RISK MANAGEMENT ISSUES IN PREMISES LIABILITY CASES

A. Spoliation of Evidence 83
B. Contract Risk-Shifting Measures 85
C. Contract Risk-Shifting Measures: What to Look For 86
D. Indemnification 87

1. Indemnified Parties 87
2. Types of Claims 87
3. Indemnification and Defense 88
4. Mutual Indemnity 88
5. Examples 88
6. Other Considerations for Specificity of Indemnity Provision 92
7. Retail Tenant and Landlord Issues 93
8. Indemnity in Construction 94
9. State By State Anti-Indemnity Statutes 94

E. Coverage 98

1. Additional Insured 98
2. Proof of Coverage 98
3. Timing 99
4. Examples 99

F. Certificates of Insurance 100

1. Examples 103

G. When to Tender 107
H. Determination of the Duty to Defend 107
I. What is Considered Late Notice to the Insurer? 109
J. Waiver of Subrogation 110

1. Examples 111

X. CRIMINAL ACTS OF THIRD PARTIES

A. General Rule 112
B. Existence of a Special Relationship 113
C. Reasonable Foreseeability 113

1. Knowledge of Propensity for Violence 115
2. Evidence of Prior Occurrences 115
3. Duty to Provide Safe Means of Ingress/Egress 117
4. Voluntary Undertaking 118
5. Liability for Independent Contractors 119

D. What to take from the Criminal Acts of Third Party Cases 121
E. Applying Law in Criminal Acts of Third Parties to Prevent Losses in Retail 121

XI. DRAM SHOP LIABILITY

A. General Rule 123
B. Elements of a Dram Shop Action 123

1. Proof of Intoxication 124
2. Causation of Intoxication 126
3. Causation of the Injury 126

C. Defenses 127

1. Complicity 127
2. Provocation 128

D. Other Considerations 129

1. Common Law Claims 129
2. Application of the Fireman’s Rule to Dram Shop Claims 130
3. Enforcing Illinois Dram Shop in Other States 131

E. Damages 132

1. Statutory Limitation of Damages 132
2. Contribution 132
3. Allocation of Loss Among Defendants and Set-Offs 133
4. Interplay Between Dram Shop Act and Insurance Guaranty Fund Act 134

F. What to take from the Dram Shop Act Cases 135
G. Applying Law in Dram Shop Cases to Prevent Liability 135

XII. RECENTLY ENACTED LAW AFFECTING ILLINOIS CLAIMS

A. 735 ILCS 5/2-2301 136

XIII. RECENTLY PROPOSED LEGISLATION REGARING PREMISES LIABILITY LAW

A. Illinois House Bill 1441 136

XIV. WISCONSIN PREMISES LIABILITY LAW

A. Negligence Standard 137
B. Causation 137
C. Safe Place Statute and Negligence Claims 137

1. Notice 139
2. Snow and Ice Accumulation 140
3. Affirmative Defenses 141

D. Criminal Acts of Third Parties 142

1. Innkeepers Liability for Criminal Acts of Third Parties 144

E. Dram Shop Liability 144