DAMAGES AVAILABLE
Premises liability cases are negligence cases and are submitted to the jury similar to other negligence cases. The categories of damages available under Texas law generally fall into the following categories:
- reasonable and necessary medical expenses – past and future;
- loss of earning capacity – past and future
- physical pain – past and future
- mental anguish – past and future
- physical impairment– past and future;
- disfigurement – past and future
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CAN PUNITIVE DAMAGES BE RECOVERED IN A
CAN PUNITIVE DAMAGES BE RECOVERED IN A PREMISES LIABILITY CASE?
Yes, under very special and extreme circumstances. In short, there would have to be evidence of “gross negligence” on the part of the defendant. That term is defined in Texas case law as
Gross negligence is “an act or omission involving subjective awareness of an extreme degree of risk, indicating conscious indifference to the rights, safety, or welfare of others.” State v. Shumake, 199 S.W.3d 279, 287 (Tex. 2006) (citing Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 21 (Tex. 1994)).
The Texas Supreme Court is very conservative and very pro-business when reviewing these types of cases. While a jury can sometimes be persuaded to award punitive damages in these cases, the likelihood of holding that aware on appeal is pretty thin.
WHAT ARE THE COMMON MISCONCEPTIONS
REGARDING PREMISES LIABILITY CLAIMS?
While a business owner has a duty to customers (known as “invitees” under the law) to keep the business premises reasonably safe, the law does not make the business owner automatically liable for every injury that occurs on the premises. The concept that is used often in these cases is “notice”. If a condition existed for such a short period of time that the owner/occupier did not have the opportunity to discover or warn of the defect, then it’s likely that the business will be found to not be negligent in the incident. For example, let’s say that a mom is pushing a cart through a grocery store and has a small child in the cart, drinking from a ‘sippy cup”. The child takes the lid off the cup and spills his drink on the floor. I second later you come around the corner and step in the liquid, slipping and hurting your back. The store will take the position that they were not negligent because the defect (liquid on the floor) was there such a short time that they could not have reasonably been expected to find it and clean it up. And, in my experience, that defense will be a winner for them at the courthouse.
Nothing could be further from the truth. Slip and fall cases are amount the most difficult to win and trial due to the proof of notice of the condition that is necessary. In fact, many law firms have a blanket rule that they do not accept slip and fall cases, due to the lack of success. Plaintiffs win jury verdicts in this cases less than 50% of the time if the case proceeds to trial and when the Plaintiff does win, contributory negligence often reduces the amount of the recovery by the percentage of negligence that is assigned to the Plaintiff for failing to “watch where they were going”.
Not True. Different companies obviously have different philosophies about how to handle injury claims, but most have a significant role in deciding what claims are settled and what claims are denied. Business policies often have a “self-insured retention” (think “deductible”) for which payments come directly from the business as opposed to the insurance carrier. Other companies often will take a strong position on denying claims with the thought that they are sending the message that they will not be “labeled” as a company that is easy pickings for claimants. Walmart, for years, took a very hard line on claims and didn’t settle even clear liability claims in an attempt to dissuade claimants from making claims.
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