Scott M. Kuboff, Esq.
Northeast Ohio Trial Attorney

Understanding Your Rights


Posts tagged premises liability


The baseball season is upon us and most major cities in Ohio – Cleveland, Cincinnati, Columbus, Toledo, Akron, Dayton, and Youngstown – have professional baseball teams that draw in several million spectators per year.    Foul balls, homeruns, broken bats, and errant throws pose a risk of personal injury and harm to any spectator.   However, recovering for such injury can prove difficult and is dependent on the facts and circumstances of each case.

In Ohio, to maintain an action for negligence a plaintiff has the burden of establishing that: (1) the defendant owed the plaintiff a duty of care; (2) the defendant breached that duty; and (3) the plaintiff suffered injury proximately caused by the breach.    However, if a defendant shows that the plaintiff assumed the risk of injury through participating in an inherently dangerous activity; the defendant owes no duty and, therefore, the plaintiff cannot recover for his/her injuries. 

Ohio recognizes three different variations of assumption of risk: express, primary, and secondary/implied.   Express assumption of the risk occurs in situations where a plaintiff signs a waiver or release expressly agreeing to accept a risk of harm arising from the defendant’s conduct.   A good example of express assumption of the risk is signing a release before going into a trampoline park.   Implied assumption of the risk arises where a plaintiff voluntarily engages in activity where there are known and/or potential risks of harm and, in doing so, relieves the defendant of his duty of care.  Anyone who has ever played in a pick-up basketball game has impliedly assumed the risk of injury inherent to basketball.   Finally, primary assumption of the risk is similar to implied assumption of the risk, however, with primary assumption of the risk, the dangers are such that they cannot be eliminated even through the exercise of reasonable care.   Primary assumption of risk has historically been applied in cases involving spectators injured at sporting events.   This has come to be known as the "baseball rule."

Ohio courts have recognized that watching a baseball game is an inherently dangerous activity.  Specifically, it is known that balls are frequently batted or thrown into the stands and, occasionally, baseball bats are shattered or batters lose their grip sending them into the stands.    Ohio courts have also determined that it is the spectators – not the baseball team or stadium owners – who are in the best position to protect the spectators from injury.   The general argument is that, by paying attention and watching the game, a spectator is in the best position to avoid being struck when a ball or bat is directed towards them.

Further, courts are reluctant to require owners to screen in all areas of the stadium.     Instead, Ohio courts have found that the baseball team or stadium owners meet their duty of care if they provide areas of screened-in seating and give spectators the opportunity to purchase tickets in those areas.   In other words, courts reason that if the spectator wants to be protected by a screen, he or she can buy a ticket in that area.    

As you can see, primary assumption of the risk is an extremely powerful defense.   However, not all injuries sustained at the ballpark will implicate primary assumption of the risk.    Baseball team and stadium owners still owe a duty to warn and remediate conditions on the premises for which they know, or should know through reasonable inspection, that pose an unreasonable risk of harm.   Cases where a spectator is injured as a result of a defect in his or her seat, a hand rail, or a spill caused by a concessioner, may very well proceed without this defense.    Further, Ohio courts have allowed cases to proceed where there is a question as to whether or not the baseball team or stadium owner breached its duty by allowing particular activities to take place in inappropriate areas.  For example, allowing players to take batting practice in the outfield or in a bullpen, may very well preclude the assumption of the risk defense. 

If you have been injured at a sporting event, and are concerned that you may be left financially responsible for your injuries, contact Scott for a no cost, no obligation consultation and case evaluation.

Avoiding Premises Pitfalls

     One source of potential liability for small business owners are the varying degrees of hazards upon their business premises.   This is especially true for business that have a lot of foot traffic – restaurants, retail stores, and apartment complexes, to name a few.  

     Lawyers call this “premises liability” because it is the liability that attaches to a person or entity because they own, operate, or control a premises or property.   Generally, small business owners find themselves confronted with a lawsuit because either:

  • They, through its officers, employees or agents, were responsible for the hazard;
  • They had actual knowledge of the hazard and neglected to promptly remove it or give adequate notice of its presence; or
  • The hazard existed for a sufficient length of time to reasonably justify the inference that the failure to remove it or warn against it was attributable to a lack of ordinary care.

      Bare in mind, just because you don’t see or know about a hazard, does NOT mean that you can avoid liability.   In premises liability cases, ignorance is NOT bliss and can actually lead to greater liability.   Instead, business who own, operate, or control a premises or property have a duty of reasonable inspection to uncover latent (unknown or unobservable) hazards.   Here are some common pointers to avoid liability:

  •  Understand the Laws.   Many municipalities enact ordinances that require premises owners to take affirmative action concerning repairing walkways, removal of snow and addressing other nuisances on the property.  There are also laws from the State of Ohio and Federal government concerning landlord-tenant duties, accessibility standards, fire, health, and other applicable building codes.   Failure to follow the applicable law is a recipe for liability.
  • Conduct Regular Inspections.   Premises owners cannot just sit on their hands; they have to actually inspect the premises.  Inspections by the business owner should be regular noting any defects, required repairs, and other hazards.   
  • Repair Immediately and Warn: If your inspection reveals a defect or hazard, fix it immediately.  If it is going to take some time, be sure to cordon off the area or, at the very least, place proper signage warning business guests of the hazard.   Failure to do so will expose your business to liability.  
  • Consider Other Circumstances and Factors:     Often times, even hazards which are “open and obvious” are considered unreasonable and unsafe because of “attendant circumstances.”  These are factors that would divert or distract business guests’ attention away from the hazard.   Whether it is flashy displays in close proximity to the hazard, areas of increased traffic, or even casual conversation with other guests or staff, these circumstances can result in liability for your business.   Keep theses factors in mind when conducting regular inspections.    

     If you are interesting in protecting your business from premises liability, please contact Scott for a no cost, no obligation consultation and case evaluation.

UYR: Road to Recovery in Slip/Trip and Fall cases

I frequently get phone calls and emails concerning individuals who were injured as a result of a trip and fall or a slip and fall on someone’s property or at a place of business.   Typical injuries range from a concussion to a broken leg or a dislocated shoulder.  Some injuries are quite significant, requiring surgical repair and many months of rehabilitation.   However, just because someone was injured as a result of a fall, does not necessarily mean that he or she has a viable claim for negligence.  In my experience, these types of claims are most always contested and vigorously defended.    

Premises liability – i.e. the liability of the landowner – is a fairly nuanced area of the law.   The purpose of this article is not to delve into every aspect of premises liability (I’ll save some for later) but, rather, to give you a general overview of what is needed to bring (and prove) a viable claim.    

Generally speaking, a slip and fall claim is premised on the negligence of the landowner.   To prevail on a negligence action, a plaintiff must show (1) the existence of a duty, (2) a breach of that duty, and (3) an injury proximately resulting from the breach.   In slip and fall claims, the applicable duty is determined by the relationship between the plaintiff and landowner: business invitee, licensee, or trespasser.  “Invitees” are persons who rightfully come upon the premises of another by invitation, express or implied, for some purpose which is beneficial to the owner (e.g. customer at a store.)  A “licensee” is a person who enters another’s property by permission or acquiescence, for his own pleasure or benefit, and not by invitation (e.g. police officer or firefighter.)   A “trespasser” is someone who is upon the premises without consent (e.g. burglar.) 

Most, if not all, inquires I receive are from individuals who would be classified as an invitee.  The duty owed to an invitee is one of ordinary care to maintain the premises in a reasonably safe condition and to warn of hidden dangers. This duty also requires a landowner to inspect the premises to discover possible dangerous conditions of which he or she does not know, and take reasonable precaution to protect the invitee from dangers which are foreseeable from the arrangement or use. 

In order to prove a landowner breached this duty, the plaintiff must prove any of the following: (1) the landowner, through its officers, employees or agents, was responsible for the hazard (e.g. employee caused a spill); (2) the landowner had actual knowledge of the hazard and neglected to promptly remove it or give adequate notice of its presence (e.g. was notified about spill but did not clean it up); or (3) the hazard existed for a sufficient length of time to reasonably justify the inference that the failure to remove it or warn against it was attributable to a lack of ordinary care (e.g. spill was on floor for sufficient period of time that they should have known about it.)

In most cases, the landowner will claim the hazard was either (1) not unreasonably dangerous or (2) “open and obvious” in an effort to extinguish any duty to plaintiff.  Under the “open and obvious” doctrine, the landowner owes no duty to persons entering those premises regarding dangers that are open and obvious.  The rationale underlying this doctrine is that the open and obvious nature of the hazard itself serves as a warning.  Thus, the landowner may reasonably expect that persons entering the premises will discover those dangers and take appropriate measures to protect themselves.  However, the question of whether a danger is open and obvious is an objective one, and courts must consider attendant circumstances (i.e. lighting, degree of attention, prior exposure, etc.) as to whether a reasonable person would deem the danger open and obvious.   

If you have been injured as a result of a slip and fall or trip and fall, please contact Scott for a no cost, no obligation consultation and case evaluation.