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Proving Negligence in a Georgia Premises Liability Case

If you were injured due to a hazardous condition on someone else's property, you may be able to recover damages for your injuries by filing a premises liability lawsuit.

Most premises liability cases involve a claim of negligence. Under Georgia law, there are specific elements that the injured person must prove in order to make a successful negligence claim.

Elements of a Georgia Premises Liability Case

There are four elements to prove negligence in a premises liability case:

  • There was a duty to conform to a standard of conduct. In general, property owners have a duty to keep their premises safe. However, this duty varies considerably, depending on the specific circumstances of the case. For example, property owners and landlords have different levels of legal responsibility for keeping their premises safe.
  • There was a breach of that duty. If a property owner did not warn of or fix a hazardous condition on their premises, that could be a breach of duty.
  • The breach of duty resulted in injury. The injured person must be able to show that his or her injury resulted from the action (or inaction) of another party. The injured person is generally also required to have exercised "ordinary care" themselves in order to avoid being injured. For example, if a hazardous condition was "open and obvious" or "in plain sight," an ordinarily careful person may have been able to avoid being injured. Georgia law weighs the comparative negligence of all parties, including the injured person, when awarding damages. If the injured person is found to be 50% or more responsible for their injury, they cannot recover damages.
  • The injury caused damages. The injured party must also be able to prove that his or her injury resulted in damages. If the injury was minor (for example, a skinned knee or a small bruise), there might not be any damages.

Proving Property Owner Negligence

To prove negligence, an injured person must first demonstrate that a property owner owed a duty of care.

Georgia law states that a property owner or occupier is "…liable in damages…for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe" (see GA Code § 51-3-1).

This duty of care includes keeping the property itself safe, as well as the "approaches" to the property, such as walkways, stairs, ramps, and parking lots.

This duty also extends to taking ordinary care to protect people on the property from third-party criminal activities. For example, if a building owner knew that there had been criminal activity on the property and failed to repair a broken door, gate, or lock, they could potentially be found liable for injuries that occurred due to negligent security.

This same standard generally also applies to landlords who remain "in possession" of the property after it is leased to a tenant. An "in possession" landlord is one who occupies the property or continues to maintain ownership and day-to-day control over the property.

Who is Owed a Duty of Care?

Property owners and occupiers only owe this duty of care to "invitees" on (or in some cases, near) their property. An invitee is someone who was invited, either expressly or implicitly, onto the property.

People who are "invited" onto a property include:

  • Customers of shopping malls, retail stores, restaurants, grocery stores, banks, gas stations and other businesses;
  • Patients at hospitals, clinics, nursing homes and other medical establishments.
  • Ticket holders at sporting events, concerts, lectures or other events.

The common theme is that "invitees" have lawfully entered the property and their presence provides some benefit to the property or business owner. A lesser duty is owed to licensees (those who are on the property lawfully, but for their own purposes that do not benefit the property owner) and to trespassers.

Did the Property Owner Have Knowledge of the Hazard?

To prove that a property owner or occupier breached their duty of ordinary care, Georgia law also requires that they had actual or constructive knowledge of a potentially hazardous condition.

Actual knowledge is something that is actually seen, heard or otherwise known. Constructive knowledge is something that a person should have known, but did not actually know.

For example, if a property owner had been notified that there was a loose step on their stairway, that would be actual knowledge of a potentially hazardous condition. If the step had been broken for a long time, a "reasonably prudent" property owner should have known about it, if they had been performing periodic inspections to identify and address potentially hazardous conditions on their property. If they should have known about the condition, they could be found to have constructive knowledge of the hazard.

Proving Landlord Negligence

Georgia law differentiates between the duties of "in possession" and "out of possession" (or absentee) landlords. An absentee landlord generally only has a duty to address defective construction and to keep their premises in repair. This is a lower duty of care than is required of property owners and "in possession" landlords.

To prove negligence, the injured party generally must be able to demonstrate that the landlord had knowledge of the defective construction or of the condition in need of repair. However, in some cases, landlords have been held responsible when they should have known about dangerous conditions or defective construction.

Landlords also are not responsible for injuries to third parties that occur due to their tenants' negligence or illegal activities.

Proving Government Negligence

If an injury occurs on government property, it is usually much more challenging to make a successful negligence claim against the government.

Government agencies, employees, and officers enjoy broad immunity against lawsuits in Georgia, particularly when they are performing what are called "discretionary" duties. Discretionary duties require that a government employee make a choice between different potential courses of action. In most cases, it is not possible to sue the government for injuries that occurred due to negligence in performing discretionary duties.

In contrast, ministerial duties are those that are clearly defined and don't require any kind of judgment call to be made by the government employee.

It is possible to sue the government for injuries that resulted from negligence in performing ministerial duties in some situations, including:

  • Under the Georgia Tort Claims Act, the state of Georgia may be liable for certain negligent acts of its officers and employees, if those employees were performing a ministerial function (see GA Code § 50-21-23).
  • Cities and towns may be held liable for employees' "neglect to perform or improper or unskillful performance of their ministerial duties" (See GA Code § 36-33-1). For example, Georgia courts have found that city and town street and sidewalk maintenance is a ministerial duty.

Therefore, whether a government employee was performing a ministerial or discretionary activity is often one of the critical elements in a case where injuries occurred due to government employee negligence.

Proving Negligence in Your Premises Liability Case

While the basic elements required to prove negligence are the same across most premises liability cases, proving negligence in a specific case requires an in-depth knowledge of Georgia premises liability law.

An experienced premises liability attorney can help you navigate the complexities of proving negligence in your specific premises liability case.

If you have been injured on someone else's property, and you believe a property owner, landlord, or government employee's negligence caused your injuries, contact the Hadden Law Firm today. They will fight to hold the negligent party responsible, so you can get the fair and just compensation you deserve.

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