Why Should Business Owners Care About Comparative Negligence?

If someone slips, falls and suffers an injury in your business, who’s to blame? That’s the key question in many premises liability cases. It’s also a question that different states interpret in different ways. Understanding the rules for your state is key to mounting a solid legal defense.

The question of blame can be broken down into two elements – duty and negligence. Did either party have a duty to the other? And did either party fail to uphold its duty? Sometimes, the answer is “yes” all around. When both parties contributed to the problem, most states, including Colorado, Illinois, Missouri and Montana, compare how much each party contributed. This is comparative negligence, and it comes with some small nuances that can make a huge difference.

First Comes the Question of Duty

Before we compare how much either side contributes to an accident and injury, we must first determine if either side has a legal duty to the other. In the case of premises liability, every state holds that property owners owe some responsibility for maintaining the safety of their properties.

Typically, this means that business owners must take reasonable steps to keep their property safe. Even so, this general rule leaves a lot of room for different interpretations from state to state:

Do business owners need to remove the hazards that might injure burglars and other illegal visitors?

What exactly are the reasonable steps that businesses should take?

Are businesses responsible when visitors injure themselves on “open and obvious” hazards, such as open fires?

This last question is particularly pointed. Most, but not all, states recognize the “open and obvious” doctrine. This effectively states that if a “reasonable person” could easily identify a hazard and the danger it presents, the property owner may not be liable for any injuries that hazard causes. Or, the property owner may hold a lesser degree of liability.

Different Takes on Comparative Negligence

Most states follow some form of comparative negligence. Only four states use a different system of contributory negligence. These are Alabama, Maryland, North Carolina and Virginia. These states bar plaintiffs from recovering damages through lawsuits if the plaintiffs had, themselves, demonstrated negligence. In other words, if they were partly to blame, they cannot win a lawsuit.

In all the other states, plaintiffs can sue successfully, even if they were somewhat responsible. However, different states set different limits:

12 states, including Missouri, use a system of pure comparative negligence. This means that plaintiffs can sue for damages, regardless of how much they were to blame. So, long as they were not 100% at fault, the plaintiffs can recover damages. The size of their awards, however, are reduced by the degree to which they were at fault. For example, if a plaintiff were 70% at fault for an injury worth $10,000, that plaintiff could still recover $3,000.

23 states, including Illinois and Montana, set a 51% threshold for comparative negligence. This means that plaintiffs must argue that the defendants were 51% or more at fault. If a court finds that the plaintiff was 50% or more at fault, the plaintiff recovers nothing. Otherwise, the plaintiffs can recover a share of the damages reduced by their share of the negligence.

10 states, including Colorado, set a 50% threshold. This works like the 51% threshold, except that plaintiffs can still sue successfully, even if they hold an equal share of the fault. As soon as they become more responsible for the accident, tipping their share of the negligence to 51% or higher, they can no longer win their claims.

Naturally, all these systems, including contributory negligence, demand that business owners defend themselves against any undue share of the blame. This usually means presenting evidence that shows they took reasonable steps to keep their property safe. It may also mean providing surveillance that shows the plaintiff contributed to the incident.

Does it mean addressing whether the hazard was “open and obvious”? Not always.

What’s the Deal with the Open and Obvious Doctrine?

In many cases, the open and obvious doctrine doesn’t focus on determining the share of blame. Instead, it may factor into the property owner’s duty. The argument goes that if the hazard is open and obvious, the property owner doesn’t have the same legal duty to mitigate it.

Unfortunately for business owners, one state’s Supreme Court recently overturned decades of precedent, and the decision could potentially echo across the country. In Michigan, courts had long allowed property owners to pursue the summary dismissal of injury cases centered round open and obvious dangers. This is notable because summary dismissal is only an option when the only questions at stake are those of law, not of the facts. The property owner’s legal duty is a question of law.

However, the state’s Supreme Court decided that the dismissal of cases based on the open and obvious doctrine was inconsistent with the state’s model of comparative negligence. The court argued that the question of whether a hazard was truly open and obvious was one of fact that should be determined by a jury, not by the judge.

While this ruling has no immediate legal impact in other states, it suggests we might see similar arguments echoing across state lines. Certainly, it’s likely that plaintiffs’ attorneys in other states with comparative negligence systems will argue that courts should not accept the open and obvious defense as a question of law. If they succeed, business owners could face a flood of new lawsuits.

The Best Defense Depends on the Circumstances

As a business owner, you want to defend yourself against lawsuits as quickly and effectively as possible. Your job is to run your business, not to get bogged down in legal actions. Accordingly, you want your legal team to explore every available option for a summary dismissal, a relatively painless settlement or some other positive outcome. But what happens if the open and obvious doctrine cracks apart?

The truth is that the open and obvious doctrine is only one possible defense. The full extent of your options depends on the circumstances of your case. So does your choice of which option might serve you best. As a result, you want to make sure your team fully explores all the circumstances, including all the relevant laws.

You want to make sure your strategy is fully informed. Even if you cannot dismiss the case based on the open and obvious defense, you might point at the obvious nature of the hazard. If the plaintiff should have known better, you might argue that the plaintiff deserves the majority of the blame.