Direct And Circumstantial Evidence In Landowner Liability Cases

Slip-and-falls, dog bites, and swimming pool drownings are among the most common types of landowner liability negligence cases. In each instance, the landowner has a duty of care to protect visitors from injury; because invited guests have more legal rights than uninvited ones, the precise nature of the duty largely depends on the visitor’s legal status of invitee, licensee, or trespasser.

In all these instances, the plaintiff must prove liability by a preponderance of the evidence, which means more likely than not. Picture two equally-sized stacks of paper side by side. If one sheet is moved from the left to the right, the stack on the right is higher than the one on the left. That is the picture of preponderance of the evidence.

Direct Evidence

In some landowner liability cases, there is a “smoking gun” that clearly establishes liability. Such evidence often includes:

• A broadcasted report about a wet spot on the floor that needs cleaning up,
• A written maintenance log that makes a similar announcement about a pothole in the parking lot or burned-out security light,
• Surveillance video that shows an employee or landowner visually assessing a loose stair rail, or
• A third-party report from an engineer or inspector about a possibly defective elevator or escalator.

These smoking guns are nearly always uncovered during discovery, when the plaintiff reviews documents from the defendant and deposes both fact and expert witnesses in the case.

Circumstantial Evidence

In lieu of direct knowledge of a defect, the plaintiff can establish constructive knowledge, which means that the owner “should have known” about the dangerous condition. The case of Anjou v Boston Elevated Railway Company (1911) offers guidance in this matter.

During rush hour at the Dudley Street Terminal, Helen Anjou slipped and fell on a banana peel. According to numerous witnesses, the peel “felt dry and gritty as if there were dirt upon it,” as if it had been “tramped over a good deal;” furthermore, “every bit of it was black, there wasn’t a particle of yellow.”

The owner claimed that it was not liable for Mr. Anjou’s head injuries because it had no direct knowledge about the peel. But the court scrutinized the peel’s color to formulate an approach for evaluating circumstantial evidence:

• Yellow Peel: The landowner does not have constructive knowledge about hazards that only recently appeared.
• Black Peel: If the dangerous condition had existed for quite some time, the owner should have known about it.
• Brown Peel: More evidence is needed to establish constructive knowledge, or the lack thereof.

Landowners have a duty to keep their premises safe. For a free consultation with an experienced personal injury attorney in Lake Charles, contact Hoffoss Devall. An attorney can arrange ongoing medical care for victims, even if they have no money and no insurance.