Articles Posted in Premises Liability

Signing Waiver

     “Please be careful” is a continuous warning parents relay to their children, but children are often faced with many risks that are outside of their—and their parents’ or guardians’—control.  This is especially true when minor children visit businesses that specifically cater as places of amusement, where things such as other rambunctious patrons, faulty equipment, poorly-trained employees, or dangerous premises can potentially cause injury, no matter how careful an individual child or their guardian may be.  Many parents and guardians question the validity of waivers they are often required to sign on behalf of their children. We are often asked, “Is this even legal?”; “Can they actually do that?” or “What does this mean?

     Adults, on the other hand, may feel more confident about their own safety, and might sign the paperwork to engage in an activity without even reading it.  By doing this, however, an adult may be giving up important legal rights—while at the same time placing themselves at the mercy of a for-profit business and its employees.

     When adults and children visit businesses offering activities that present a risk of injury, patrons are almost always required to sign a pre-injury release and waiver.  Businesses such as trampoline parks, climbing gyms, rafting companies, paintball parks, and other entertainment venues use these waivers both as an attempt to limit their liability for injuries and to discourage claims.  The most common forms describe the risks of engaging in the activity and require the participant to assume any and all responsibility for injuries or death, as well as releasing the business from liability and waiving the right to make any claims.

Backyard PoolUnder most circumstances, a landowner in Alabama has very minimal obligation to trespassers. Typically, a landowner is only required to refrain from creating traps or otherwise intentionally injuring anyone who is trespassing or on their land without permission.  With child trespassers, however, landowners owe a special duty to take reasonable steps to prevent injuries from hazards that may be considered an “attractive nuisance.”  An “attractive nuisance” is an artificial condition – meaning something made or done by human effort – that is potentially dangerous and that could potentially lure children onto the land.  The most common example of an attractive nuisance is a residential swimming pool, but Alabama courts have also held that a construction site, pit excavation, and utility tower could all also be considered attractive nuisances.  Alabama law places significant importance on the safety of children, and a landowner can be held liable for any injuries or deaths that occur if the landowner failed to take reasonable steps to keep children – even trespassers –  away from hazards presented by an attractive nuisance.

Under Alabama law, a landowner will be held liable for an injury to a child that occurs on their land if (1) the landowner knew or should have known that children would come onto the land; (2) the landowner knew or should have known that something on the land could pose an unreasonable risk of death or injury to a child; (3) that children were unlikely to appreciate the risk of the danger; and (4) that the landowner failed to take reasonable steps to secure the hazard and prevent injuries to children.  In an attractive nuisance case, the court might also look at the age, intelligence, and maturity of an injured child to determine whether or not the child should have appreciated the danger they faced.  In other words, the court is much more likely to find that a landowner is legally responsible if they failed to take reasonable steps to prevent a young child from accessing a swimming pool, than if a teenager intentionally climbed a fence and jumped into the pool without permission, despite knowing the potential risks.

It is also important to note that, under most circumstances, only a man-made “artificial condition” will be considered as an attractive nuisance, while “natural features” such as streams or caves normally will not be viewed as a potential attractive nuisance.  Making changes to the natural landscape, however, like digging an artificial pond or adding a ladder to access a cave entrance, could be considered as creating artificial conditions that may be attractive nuisances that could attract curious or mischievous children into a dangerous situation.

          Southern hospitality is a long standing tradition in Alabama and our residents take pride in offering guests food and drink — especially during college football season.  However, if you are serving anything more intoxicating than a glass of sweet tea to your guests, there are certain laws in Alabama that you need to understand and follow closely.  Most problems in this area are associated with a homeowner serving alcohol to minors.  STL-Party-BlogIn Alabama, the age of majority is 19 years of age, but a person must be 21 years old to legally purchase or consume alcoholic beverages.  Persons under 21 years of age cannot legally possess or consume alcohol under any circumstances, even in a private home or with parental permission.  Alabama Code § 28-1-5.

       Under the Alabama Civil Damages Act, social hosts can be liable if they provide alcohol to a a person under 21 years old and that person is injured or injures another person while intoxicated.  The parents or children of an intoxicated person under 21 years old that is injured can make a claim against the homeowners that provided the alcohol.  Other parties that are injured may pursue claims against the homeowners as well as the intoxicated person.  For example, if the host of a party provides alcohol to a person under 21 years old who then becomes intoxicated and causes a car crash as a result, the host could be sued by both the parents or children of the intoxicated person and by anyone else the intoxicated person injured in the crash.

               Homeowners may also be guilty of a crime if they allow persons under 21 years old to drink alcohol or use controlled substances on their property.  It is a misdemeanor for an adult homeowner to allow an “Open House Party” at their residence.  The Alabama Open House Party Law, makes it unlawful for an adult who is aware of the party and in attendance to allow a party to continue if:


Under longstanding Alabama law, the “owner or keeper” of a vicious or dangerous dog is legally responsible for any injuries caused by the animal.  In some cases, however, if a landlord or property manager has allowed a vicious or dangerous animal to be kept on a rental property, the landlord may be held responsible, if the animal attacks someone.  Alabama law is very complex in this area, but we have extensive experience with dog attack cases at Siniard, Timberlake & League, and are very familiar with the intricacies and challenges of this area of the law.

If a vicious or dangerous dog is present on the premises of an apartment complex or other rental property, Alabama law treats the animal’s presence much like it would any other physical hazard.  A landlord or property manager has a responsibility to handle a dangerous animal just as they would any other known danger on the property.  In Gentle v. Pine Valley Apartments, an apartment complex allowed a tenant to keep a vicious dog tied to a stair railing in a common area outside his apartment, and the dog attacked a passing child.  The Supreme Court of Alabama ruled that the duty of the landlord of an apartment complex extended to using “reasonable care” to protect tenants from dog attacks in common areas of the premises, just as with any other dangerous condition on the property.  In effect, this treats the dangerous animal as an unreasonably dangerous condition or hazard under traditional premises liability law, and the landlord or property manager has a duty to either provide a warning or remove the danger, just as they would with a defective stair, a slick spot, or a hole.

In a case that was handled by Siniard, Timberlake & League, the Alabama Court of Civil Appeals further refined this legal principle and applied it to a dog attack that occurred off the rented property.  In Berg v. Nguyen, the renter kept several vicious dogs in the back yard of a rental home and allowed the dogs to escape the property, which led to a person being attacked in the parking lot of a nearby business.  The Court of Civil Appeals agreed with Siniard, Timberlake & League on the principles of law, holding that a landlord could be held responsible for a dog attack that occurred when a vicious dog leaves the property to menace others when the landlord allows the animal to be kept on the property and either knows or should know that the animal is dangerous and poses a risk to persons off the premises.  In such a case, the most important details are whether the landlord or property manager knew the animal was dangerous and allowed it to be kept on the property and whether the landlord knew or should have known that the animal presented a danger to persons off the rented property. Continue reading

SubrogationSubrogation is the right of a third party – usually a health, disability or automobile insurance company – to recover money paid to or on behalf of an injured person from any amount the injured person receives from a responsible party.  Subrogation is based on equitable principles and considerations that an injured person should not recover twice for a single injury and that the insurer should be reimbursed for payments it made that, in fairness, should be made by the wrongdoer.  Most insurance contracts include claims for reimbursement based on the contract and require that the injured person cooperate with the insurer, furnish information concerning the personal injury claim, and most importantly notify the insurer before filing suit or settling any claim.

If you suffer a personal injury and receive medical treatment that is paid for by your health insurance company they will often send a notice of subrogation.  This notice will request information about the incident and ask that you identify any person or insurance company that may be responsible for your injuries.   The initial notice of subrogation is often followed by a notice indicating the amount paid by the insurer and a specific claim for that amount.  This notice is commonly provided to the insurance company for the responsible party.

When it comes time to actually reimburse your health insurance provider for the medical bills they have paid, your attorney may be able to negotiate a reduced repayment amount.  Alabama state courts have applied equitable principles when interpreting contractual subrogation provisions.  The “made whole” doctrine and the “common fund” doctrine are the most prevalent.  When the “made whole” doctrine is applicable, insurers are not allowed to pursue their subrogation rights unless and until the injured party is “made whole” or fully compensated for all of his or her losses.  Where the amount recovered by the injured party is less than his or her loss (as is common when the responsible party is underinsured or uninsured) then the insured has not been made whole and the insurer may not pursue its subrogation claim.  Regrettably, recent decisions of our courts have allowed insurers to contractually avoid the application of the made whole doctrine in many cases. Continue reading

photo 3Although many think the dramatic parts of a trial – the opening and closing arguments — are the most crucial moments, the actual evidence presented at trial is what truly determines the verdict.  After all, a jury’s verdict must be based on the evidence.  But what is “evidence”?  A lawyer’s argument or interpretation of facts is not evidence in a personal injury case.  Evidence can be testimony given by witnesses, as well as tangible items and documents that are admitted as exhibits.  Each state has its own rules of evidence that a judge must apply in determining whether evidence is admissible or not admissible.   In many situations, evidence that would seem quite relevant to the lawsuit is frequently excluded at trial.  It may be a surprise to find out that these five things are usually inadmissible in a personal injury case in Alabama.

Alabama Uniform Traffic Crash Reports – Alabama Courts have said that automobile accident reports are inadmissible at trial.  36789760However, judges have disagreed on the reason why. One Alabama statute states, “No such report shall be used as evidence in any trial, civil or criminal, arising out of an accident…” (Ala. Code § 32-10-11). In Mainor v. Hayneville Telephone Co., 715 So. 2d 800 (Ala. Civ. App. 1997), the Alabama Civil Court of Appeals decided that the statute required that automobile accident reports be excluded at trial.  However, other judges have prevented admission of automobile accident reports on the basis of the “hearsay rule” (Alabama Rule of Evidence 802).  In limited situations, an automobile accident report can be used at trial to refresh a police officer’s memory while he is testifying or to impeach a witness who has made a prior inconsistent statement.  Yet in the vast majority of cases, the jury will not be allowed to view the accident report or learn all the information contained in the report.

The Defendant’s Available Liability Insurance – In personal injury cases, the main question is whether someone is liable to another for money damages.  For a party to be found liable, they must be proved to have been negligent.  In Alabama, automobile insurance is mandatory.  Therefore, in a lawsuit seeking damages for personal injury from a car wreck, the insurance company will provide legal representation and will pay any judgment – up to the limit of the policy – entered against the person, if he or she is found to be negligent.  However, in almost all situations, the jury cannot be told that a defendant has liability insurance.  Alabama Rule of Evidence 411 states, “Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully.”   The justification for this rule is straightforward.  A jury may be tempted to award damages or increase its award of damages because the insurance company is paying the judgment.  Our legal system wants the jury to determine the outcome of a personal injury case on the facts, not whether the insurance company will pay the judgment.

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caution-wet-floor-sign-1-1006453-sThere are many types claims made as a result of injuries on another person’s property under Alabama’s common law. These claims are commonly referred to as premises liability cases or “slip and fall,” or “trip and fall” cases.  They can occur inside or outside of a building, in parking lots, sidewalks, entry ways, yards, or many other places.  Typically, these claims involve injuries caused by debris or liquids on floors, falling merchandise, uneven floors or defects in floors, poor lighting, and other hazardous conditions.  Many of these conditions can be traced to violations of applicable building or life safety codes.

Premises Liability cases can be some of the most difficult cases to prove under Alabama law.   There are many factors that have to be considered to determine whether you have a valid claim against a property owner or business.   The business or property owner is not responsible for an injury just because it occurred on their property.  In order to recover, the injured person must prove that the business or property owner did something or failed to take some action that caused the injury.

The majority of premises liability cases occur at a business or in a common area outside of a business. The Alabama Supreme Court defines the duty a business owner owes to customers (or “business invitees”) as follows:

 “The owner of a premises owes a duty to business invitees to use reasonable care and diligence to keep the premises in a safe condition, or, if the premises are in a dangerous condition, to give sufficient warning so that, by the use of ordinary care, the danger can be avoided.”

Kmart Corp. v. Basset, 769 So.2d 282 (Ala.2000).  However, “the mere fact that a business invitee is injured does not create a presumption of negligence on the part of a premises owner.”  Hose v. Winn-Dixie Montgomery, Inc., 658 So.2d 403, 404 (Ala.1995).  Rather, “a premises owner is liable in negligence only if it fails to use reasonable care in maintaining its premises in a reasonably safe manner.”

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