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Reducing Premises Liability Exposure in WV

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Owning business property has its challenges, and claims can arise in the most basic of areas: parking lots, staircases, sidewalks, and elevators. Failure to adequately maintain business premises with proper locks, lighting, equipment, and signage can quickly lead to liability. Property owners must be ever-vigilant.

In parts one of this premises liability series, Oscar R. Molina explained the various types of premises liability claims, and in the second blog he identified areas to watch for potential premises liability claims. Part three of the series focuses on not only avoiding premises liability in West Virginia but also, when avoidance is impossible, on mitigating or reducing premises liability exposure in WV.

Reducing Premises Liability Exposure in WV: Recent Developments

If you want to see what caselaw looks like when it attempts to overturn a century of Mountain State premises liability law, read the 2013 Hersh decision by the Supreme Court of Appeals of West Virginia-a case about a missing handrail and a fall down the stairs. The defendants cited the open and obvious doctrine, which reduced recovery when a condition was open and obvious. The court found the doctrine too harsh.

The West Virginia Legislature disagreed, enacting WV Code § 55-7-28 in 2015, which codified the open and obvious doctrine. As a result, this defense is currently available to property owners against claims for injuries sustained by open and obvious conditions, potentially reducing premises liability exposure in WV businesses. Property owners can also find encouragement in statutes limiting the liability of landowners, which says that people who use land for recreational purposes (with permission) have the duty of care to protect themselves.

The Best Approach: Preventing and Avoiding Premises Liability in West Virginia Altogether

Business owners can work toward preventing and mitigating claims by integrating three practices into operations:

  •  Inspect for problem areas;
  •  Make changes or repairs where needed; and
  •  Post notices of continuing potential areas of risk.

Ideally, a property owner's best approach is to prevent or avoid premises liability claims altogether. Some property owners act proactively by having insurance agents help identify possible problem areas.

All property owners or operators should arrange for routine maintenance to identify potential risks for injury. Maintenance is important in several key areas:

  •  Electrical;
  •  Plumbing; and
  •  HVAC.

Engage the help of professionals in these fields if you do not have a designated department. Both preventative maintenance and reparative maintenance are essential.

When the risk involved is not from property or equipment but from people, the approach is similar. Identify potential hazards, whether from trespass or from uninvited visitors. Also review hiring practices, personnel management, and ongoing training efforts to help lessen this risk associated with injury that could be caused by employees.

Dealing with authorized and unauthorized visitors to the property requires a different approach but is no less important for managing risk. Reviewing and maintaining appropriate safety features such as screening visitors, where appropriate, and securing property from trespass can help avoid liability caused by non-employees.

Regardless of whether you retain outside help or undertake these steps in-house, the key to avoiding premises liability in West Virginia is to be proactive.

Defending Premises Liability Claims

At times, even the best efforts fail to prevent an injury, and it is necessary to defend claims. Several defenses are available to business owners, depending on the situation:

  • Assumption of risk in WV means the injured person knew of a risk (can be by warning) but nonetheless entered the property or engaged in the activity warned of;
  • Comparative fault looks at the degree of fault of the injured person to determine whether he or she is eligible to recover on a claim ;
  • Trespassing (WV Code § 61-3B-1) may be argued as a basis for denying or limiting recover on a claim when the injured person was not authorized to be on the property;
  •  Lack of control over the property; and
  •  Recreational use immunity (mentioned earlier in the context of the WV law limiting liability of landowners.

These defenses, used singly or in combination, may help businesses in reducing premises liability exposure in WV or, at a minimum, reduce its financial exposure.

Coverage by the appropriate type of insurance can also help protect businesses protect themselves from financial loss due to premises liability claims. Consult an insurance agent or business attorney to identify the type of coverage needed-general liability, property, or premises liability-and the extent of coverage available.

Managing the Process of Premises Liability Litigation

There is a lot to consider when facing potential and actual premises liability claims. It is prudent to talk to someone who can think of the things that you might miss. This is where premises liability attorneys help.

Reducing premises liability exposure in WV often implicates other legal claims, too, and Jenkins Fenstermaker PLLC's labor and employment and business and commercial practice area attorneys such as Oscar R. Molina can assist you in identifying and responding to potential claims in these areas as well. Oscar is available at (304) 523-2100 (or (866) 617-4736 toll-free), or you can complete the firm's online contact form found here. You can also connect with Oscar Molina on LinkedIn.

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