Swimming Pools
Private Pools. Children are attracted to swimming pools, creating a situation where occasionally the child will sneak onto someone's property and go swimming. These are called attractive nuisances for which an owner may be liable if adequate precautions to limit access to pools are not taken. Erecting a suitable fences around the pools usually insulate owners from liability for an injury, particularly to a trespassing child. If the latch to the primary gat or if the fence around the pool is missing a section where children may crawl under it, then an issue exists regarding the liability of an owner in the case of a child's drowning.
If the child is on the property as a guest of the owner, the child's parents cannot recover when he drowns in the owner's pool, even if there is no gate on the pool. This is due to the parents' knowledge of the pool's existence and it is an open and obvious condition wherein the child is not a trespasser, eliminating the attractive nuisance doctrine. If the child is expected to be supervised by their parents, an owner is not responsible for a child's drowning, particularly when there is no defect in the pool itself. If proper equipment or supervision is not provided while guests are using a private pool, owners may be held liable for injury. For example, failure to repair broken lights creates issues as to the responsibility of the owners for the drowning of a teenager during an evening party.
Public Pools. Public facilities are potentially liable for injuries when they fail to provide boundaries, such as lifelines, between deep and shallow ends as well as qualified lifeguards on duty as required by county regulations, even if the injured party is unaware of the failure to provide these safety precautions. If there is evidence that the lifeguard has failed to supervise swimmers in a proper manner, the public facility may also be held liable.
Personal Responsibility. If you, or someone you love, dives into a pool or lake and is injured when his head strikes the bottom, there is potential liability for an owner. The owner's liability is extremely limited when the injured party is negligent by not checking the water's depth, dives into a pool with black water without checking the depth, or is familiar with the depth and dives in anyway. However, if a diving board is present at a pool, the owner does have a duty to warn guests as to hidden perils of diving, such as the water under the board is only four foot deep.
Certain states, such as Georgia, have special legislation passed to encourage owners of land to make land and water areas available to the public, that limit the owner's liability toward persons entering the premises for recreational purposes. If you have been injured in public or private pools, lakes or other related areas, an experienced premises liability attorney will be able to assist you with the laws in your area.
Stadiums
Patrons at sporting and stadium events expect to find discarded items on the ground and cannot usually recover for slipping and falling on them. Owners of facilities that hold large sporting and stadium events are not liable as other businesses to keep the premises clean. Not all patrons at these events consciously clean up after themselves or others and constantly throw food, beverages and containers on the ground. The great hardship on the stadium owner to require constant inspections and removal of all debris and trash would negate any profitability to ownership. Patrons may not usually recover for slipping and falling on the debris of others in these facilities.
Scope of Employment
Employers are liable for vicarious or imputed liability of the actions of employees whether or not employees act negligently or intentionally. As long as employees are not engaged in private and personal matters of their own, and are acting within the realm of their employment by engaging in the employer's business at the time of any injury, employers may be liable. If the employee was acting on the behalf of his or her employer at the time of the injury, on or off the clock, the employer may be liable. A liberal interpretation of the scope of employment is endorsed by the courts, even if the acts were unlawful, unauthorized, or forbidden. This is true as long as the conduct is within the general duties of employment for which the employee was hired. This generally does not include when an employee is driving to or from work.
Employer liability may be limited when considering the employee's motivation. If the employee has personal animosity toward a claimant, the employer cannot be held liable. If an argument arises from how an employee is completing his or her work, the employer may be held liable even if the employee displays a personal dislike for the customer and the actions were intentional. If it is part of the employee's job description to resolve customer complaints, dealing regularly with customers, employers may be held liable for an assault resulting from the employee's attempt to resolve the customer complaint. If it is not part of the employee's job description, and they are not authorized to interact with customers, the employer may not be held liable for assaults that occur if an employee attempts to detain a customer.
Independent Contractors
Employers are not responsible for the actions of independent contractors when contractors exercise independent businesses that are not subject to the control or immediate direction of the employer. It is difficult at times to determine whether an individual is an employee or an independent contractor. The status is decided by how much control is exercised by the employer. Independent contractors are normally listed as such in their contract for employment. Whether or not the employer ever actually exerts control over the performance of the independent contractor, if it is specifically called for in the contract, then the relationship is one of employee/employer. Although this is a general rule regarding independent contractors, there are other circumstances where the owner may be liable for accidents on their premises in this situation. An experienced Premises Liability attorney will be able to review the specific laws in your state that pertain to your situation.
Hiring and Retention Negligence
If an employer potentially knew or should have known of potential risks when hiring an employee, they may be liable for the acts of that employee if they cause an injury. It must be proved by the injured party that the employee was unsuitable for that particular position or their background procedure check of potential employees was faulty or unreasonable. For example, if the employee had a background of violent or criminal inclinations, the employer is potentially liable for any physical attacks by the employee. Depending on the kind of work to be performed, employers have a higher duty to investigate the employee's background. This does not pertain for employees of an independent contractor where the owner did not actually hire the employee.
False Arrest and Imprisonment
An extensive number of lawsuits against owners relate to the detention and arrest on suspicion of shoplifting or other such misconduct. If there is no probable cause of the person committing a crime, actions may be filed for false imprisonment as the person was unlawfully detained, no matter how long the detention lasted as they were deprived of their personal liberty. The definition of probable cause is that there is existence of facts and circumstances reasonably showing that the persons charged were guilty of the crime for which they were arrested.
A detention need not consist of physical restraint, but may arise out of words, acts, gestures, which specify a reasonable apprehension that force will be used if the claimant does not submit. If the claimant agrees of his own free will to surrender his freedom of motion, as by remaining in a room or accompanying the owner or his employees voluntarily, to clear himself of suspicion or accommodate the desires of another, rather than yielding to the constraint of a threat, then there is no imprisonment. When a claimant consents to a search of his person, there has been no imprisonment as a matter of law, and the claimant cannot maintain an action against the owner. In addition, there is no imprisonment when an employee merely asks a customer a question, and the customer's response does not require further action on the part of the employee.
A claimant can bring an action for false arrest if the owner acts with malice and without probable cause in arresting him. An arrest can be made with a warrant or without a warrant. An arrest is accomplished whenever the personal freedom of another to come and go as he pleases is restrained, no matter how slight such restraint may be. Malice consists of personal spite or general disregard of the right consideration of mankind, directed by chance against the individual injured. Malice is presumed if the owner has a total lack of probable cause to make an arrest.
As long as an owner has probable cause to suspect someone of a crime on his or her premises, they may not be held liable for an ensuing arrest. Even if the accusations are inaccurate, as long as the owner maintains a reasonable belief that a crime has been committed, they may not be held liable for a detention that turns out to be unsubstantiated. There are several reasons that owners (or their employees) have probable cause to detain someone. These include the appearance of making unauthorized credit card purchases, criminal trespass (refusing to leave after repeatedly asked to do so), and possible merchandise theft (suspicious activity leading to probable cause). The owner must also investigate sufficiently before detaining a possible criminal by checking on the reliability of both the source of the accusation and the reputation of the detainee. The owner must also review the detainee's explanation for the incident, as well as the reason for prompt action by the employee. If a police officer is involved in the suspicion and subsequent detention of the accused, the owner is not liable for the arrest. Only if the police officer is relying on the statements of the owner's employee, and they turn out to be false, may the owner be held accountable for any damages.
Malicious Prosecution
If an owner of a property prosecutes you for a crime without probable cause, you may have grounds to have the owner prosecuted for malicious prosecution. Criminal proceedings are initiated against the claimant first, as required by the tort of malicious prosecution. The judge will determine if there was probable cause at a preliminary hearing on this criminal charge. The burden of proof is then the claimant that probable cause did not exist that led to his arrest, and there was malicious motivation for the incident. If the owner simply states facts to an official who then makes his own decision to arrest or prosecute the claimant, then the owner cannot be held liable for the claimant's prosecution. There is potential liability if the owner urges a law enforcement official to begin criminal proceedings or misleads the official with false information, whether this is done directly or indirectly by the owner. If the owner fails to investigate personally to determine the truth, he may also be held liable in the case of improper prosecution. The claimant must prove that the prosecution has been terminated in his or her favor. A compromise with the prosecutor negates any possibility for a malicious prosecution suit. |
