Carnell Jones - Risk Programs Manager - InterPark Holdings ...

Carnell Jones - Risk Programs Manager - InterPark Holdings ...

Carnell Jones Risk Programs Manager InterPark Holdings, LLC Daniel Kramer Partner - Swanson, Martin, and Bell, LLP Premises Liability and the General Public: Risk Mitigation in a Litigious Society WWW.CHICAGOLANDRISKFORUM.ORG Introductions of Speakers Carnell Jones - Risk Programs Manager - Interpark Holdings, LLC Daniel Kramer - Partner - Swanson, Martin & Bell, LLP

2 What is Premises Liability?? Premises Liability Landowner liability for conditions created by others Negligence Landowner liability for conditions created by landowners

Lawsuits can be based on one or both theories provided there is evidence to support the claim. 3 Property Owners Duty of Care Owners/occupiers have a duty to exercise reasonable care in maintaining their property in a reasonably safe condition for those lawfully on the premises. Not an insurer of safety

Law does not define reasonable Types of Visitors (Invitees vs. Trespassers) 4 Illinois Legal Standard An owner or occupier of land breaches its duty if: 1. The condition was created by the negligence of the proprietor; OR 2. The proprietor had actual notice of the dangerous condition; OR 3. The proprietor had constructive notice of the dangerous condition. Liability can exist under any of the above.

5 Constructive Notice - An Evolving Concept Time is a material factor Corporate policies can create constructive notice (e.g. safety walks, inspections) 6 Is Proof of Notice Required? IT DEPENDS!

If owner created the condition or related to operations, then NO (generally) If condition was from conduct of third person, then YES (generally) 7 Types of Premises Liability Claims Slip and Falls

Snow and Ice Hazards Caused by Improper Maintenance 8 Types of Premises Liability Claims (cont) Defective Condition on Premises

Inadequate Security Practices Contributing to Assault Elevator and Escalator Incidents 9 Defenses Contributory Negligence (50% rule) Open and Obvious (No Duty to Warn)

Exceptions: Distraction Deliberate Encounter 10 Difficulty for Risk Managers Notice Requirements and Capabilities

Incurred But Not Reported (IBNR) Claims First Notice of Incident through lawsuit Inadequate Site Surveillance or Security Practices Absent vs. Inoperative Internal Incident Reporting Practices 11 (More) Difficulty for Risk Managers

Management of 3rd Party Vendors and Contractors Understanding of contractual obligations Insurance requirements Additional Insured language Claimant Fraud Exacerbated by improperly maintained/defective condition 12 Case Examples Grocery Store Slip and Fall

Customer slips on tomato Plaintiff alleges active negligence in selection of flooring material Is notice required? 13 Case Examples

Injury to Maintenance Worker Asbestos abatement worker injured in boiler room Owner had no notice of hazardous condition until work began Is notice required? 14 Case Examples

Ironworker injured in fire escape collapse. Hidden Defect (improperly fastened through brick wall) No notice to owner. Court found a duty to exist based on failure to inspect. 15 What Can You Do??

Proper Scheduled Maintenance Collaboration with Physical Plant/Capital Projects/ etc. Documented Inspection Program EHS Audits Snow Removal Logs Clear Vendor Instructions Unnatural accumulation caused by improper snow removal Customer slip and fall due to powerwash company not blocking drains

16 What Can You Do?? Utilize Loss Control Services Opportunity to reinforce risk control practices with broker/carrier Insight on best practices across industries Objective point of view Perfect World solutions without business considerations

Risk managers creative solutions Management and Front Line Staff Training Safety Inspections Incident Reporting Post-incident Communications Claimant Other Parties Avoiding Employee admissions of liability 17

What Can You Do?? Reinforce Importance of Incident Reporting to All Staff Operations Managers Front Line Senior Management .. SAFE, clean, efficient, courteous parking experience 18 What are the takeaways? Potential Premises Liability is everywhere

Landowners and their agents have responsibility to the public Responsible parties must act timely to resolve mitigate and eliminate liability issues (where possible) Plaintiff Attorneys are trending to move Premises claims to Negligence 19

Comments? 20

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