AN IMPORTANT DISTINCTION IN PREMISES LIABILITY CASES & “ACTIVE NEGLIGENCE” PERSONAL INJURY CASES

By Ben Sessions on July 28th, 2016 in Personal Injury

In a recent ruling, the Georgia Court of Appeals highlighted the important distinction between active negligence claims and static (premises liability) claims for personal injuries.

ACTIVE NEGLIGENCE VS. CONDITIONS OF THE PREMISES – CLAIMS FOR PERSONAL INJURY IN GEORGIA

Some of the claims the Cards assert against the defendants pertain to the failure to warn of the condition of the premises while some pertain to acts of active negligence on the part of J&J’s employees. For tort claims occurring on premises, there is a legal distinction

between causes of action where the alleged negligence arises from static or passive conditions (such as, pre-existing defects unattended on the premises) and causes of action thereon averring active negligence by act or omission. The record establishes that the incident on which this cause is grounded arises [, at least in part,] … from a claim of active negligence arising from [J&J’s employees’] alleged acts and omissions occurring [while Card was on the premises].

Wade v. Mitchell, 206 Ga.App. 265, 266–267 (2) (b), 424 S.E.2d 810 (1992) (citations omitted). See also Lipham v. Federated Dept. Stores, 263 Ga. 865, 865–866, 440 S.E.2d 193 (1994) (distinguishing claims arising from the condition of the premises from claims arising from active negligence). The distinction is important because we focus on “different inquiries depending on whether the injury arises (a) from pre-existing conditions or (b) from active negligence, i.e., from the proprietor’s acts or omissions occurring at the time the plaintiff was on the premises.” Brownlee v. Winn–Dixie Atlanta, 240 Ga.App. 368, 369–370, 523 S.E.2d 596 (1999) (citations omitted). For one thing, as discussed more fully below, the duties a defendant owes may be different, depending on whether a claim arises from the condition of the premises or from active negligence.

Card v. Dublin Constr. Co., No. A16A0596, 2016 WL 3648972, at *2 (Ga. Ct. App. July 7, 2016).

THINK STRATEGICALLY ABOUT THE THEORIES OF LIABILITY ALLEGED IN YOUR PERSONAL INJURY CASE.

Card illustrates and highlights the importance of how we frame claims for personal injuries. It would be relatively easy to overlook the possible failure to warn issues in these types of cases, but doing so could result in a fatal error for the injured party.

If you have a question regarding a premises liability claim or if you have been hurt on another person’s property or business, contact the personal injury lawyers at The Sessions Law Firm today.