We recently addressed governmental liability under principles of premises liability. That discussion related to personal injury claims arising out of school violence. The Court in Encinias v. Whitener held that governmental entities, including a school in that case, would be held to the same standards under premises liability law as a private entity.
There is a section of the opinion that discusses what will and what will not lead to a premises liability claim. Many of the examples deal with situations involving governmental entities such as parks, swimming pools, parking lots, schools and so on. However, these same examples are equally helpful in a determination of liability in a private setting.
The examples are worth setting forth, as they somewhat set the loose parameters of premises liability for both governmental and private entities. The list is obviously not exhaustive, but simply illustrative of the many ways premises liability might arise.
Situations Leading to Premises Liability
Without further ado, here is the list of what will lead to premises liability:
1. Perhaps the most interesting example the court gave was “wild dogs roaming the grounds of a housing project.” This is perhaps also most analogous to the protection of students from known violence at school.
2. The court also addressed parking lot and street safety, providing an example of high volumes of vehicles leaving parking lots following a concert. This one is pretty interesting and noteworthy, particularly since at least around Albuquerque this seems to be the norm rather than the exception in concert situations.
3. The Court sets out the example of pool safety where it suggested liability might be found for the operation of a public pool without an adequate level of lifeguards. In case of drowning, this would almost always be an issue. An equally plausible argument for liability not addressed by the Court would be the example of an overcrowded pool where even a large staff of lifeguards could not detect a drowning victim.
4. The next example the Court sets forth involves a prison setting where known gang members are allowed to congregate in a recreation area that was shielded from the observation of prison guards. These same grounds might apply to other settings within a prison as well as other settings where dangers exist but are sheltered from view.
5. Finally, the Court set forth an example of a school‘s creating an unsafe environment in its failure to follow student‘s individualized education plans (IEP‘s). This one was somewhat surprising and may indeed become more problematic over time as school and education budgets are slashed.
Keep in mind that each of these cases involving governmental liability resulted in the waiver of immunity to tort claims for governmental entities under the Tort Claims Act.
Cases That Do Not Lead to Premises Liability
The cases above are helpful. The examples of cases that will not lead to liability are equally helpful. The common thread in these cases is knowledge of the dangerous condition and thus the ability to prevent harm.
1. As addressed in our previous article, failure to supervise children on a playground will not necessarily lead to liability in case of injury. On the other hand, if there are known and preventable dangers such as dangerous and/or aggressive children, then there likely would be liability.
2. Injuries on a playground involving a simple accident without any defect in the equipment such as a fall from a slide will not lead to liability. Accidents do happen on playgrounds and everywhere else in life. Children are prone to have accidents and falls. They cannot all be prevented, and in the case of a fall from a slide, how would supervision prevent this unless the children are clearly misusing the equipment and the playground manager is aware if this?
3. Again, as addressed in our previous article, there is no liability at a school for a single isolated act of violence. A single isolated and presumably unexpected act of violence cannot be prevented. As such, neither a school nor any other entity would likely be held liable for this.
Knowledge and Ability to Prevent Harm is the Common Thread
In sum, governmental entities are treated the same as private entities. Likewise, private entities will be held liable for similar or comparable situations set forth above.
The common denominator in all of these cases is the knowledge of a dangerous condition and the ability to prevent it. Without this, liability for either governmental or private entities will be a challenge. This is not to say it will be impossible and each case must be carefully analyzed on its own.
In cases of premises liability cases, it is important to seek the guidance of an experienced personal injury attorney. These cases can be complex and somewhat challenging with the threshold being liability. From there, there are many other issues that must be addressed but these are best left to another discussion.
Business Owners‘ Duty of Care to Protect Customers from Criminal Acts
Reexamined Duty of Care in New Mexico Personal Injury Lawsuits
Sorting Out Responsibility in a New Mexico Premises Liability Claim