<![CDATA[premises liability - Marcotte Law Firm]]> https://www.marcottelawfirm.com/blog/tags/premises-liability/ Wed, 20 May 2026 17:00:48 GMT en-us <![CDATA[Premise Liability & Video Surveillance]]> https://www.marcottelawfirm.com/blog/premise-liability-video-surveillance/ https://www.marcottelawfirm.com/blog/premise-liability-video-surveillance/ Mon, 14 Feb 2022 19:16:20 GMT We have previously discussed a number of issues surrounding premises liability. For example, in the context of snow and ice, classifications of individuals on your property, and doctrines like attractive nuisance. We are now going to dive into some evidentiary issues that may arise in your claim, specifically in the context of surveillance video in…

]]> We have previously discussed a number of issues surrounding premises liability. For example, in the context of snow and ice, classifications of individuals on your property, and doctrines like attractive nuisance. We are now going to dive into some evidentiary issues that may arise in your claim, specifically in the context of surveillance video in a commercial setting. As the technology becomes cheaper and more readily available, more and more commercial property owners are investing in video surveillance systems. This is for a multitude of reasons. First and foremost, it helps with loss prevention (stealing). But, it also is a way for property owners or renters to have an eye in the sky to be able to record certain events. This includes many injuries. This is why we always suggest you assume that whenever you are in a commercial property, you are being watched. As you can imagine, the proliferation of surveillance cameras has significantly impacted premise liability law. More cameras means more evidence in many claims. Cameras are able to see someone when they fall. They also are able to create a timeline as to a person’s movements, or even look to see what caused the hazard that the person tripped on. As surveillance video evidence becomes the norm, so too do a host of related legal issues. Specially, issues of preservations of evidence including what is known as “spoliation.” Spoliation (not spoil-ation!) is defined as “the destruction or alteration of evidence resulting from a party’s failure to preserve evidence relevant to a litigation or investigation.” While this could refer to a deliberate and intentional destruction of video evidence, spoliation most commonly occurs when a defendant fails to preserve video evidence that they had notice may relate to a possible premise injury. This is why it is in the interest of any business to have written guidelines establishing the policy for retaining potentially relevant surveillance video. Upgrades in technology have digitized most surveillance video equipment; however, some businesses may still rely on video cassettes or discs. Regardless of the technology involved, there is still a finite ability to store video indefinitely, even digitally. Most systems will have an automated deletion program that will delete or overwrite videos after a given time. In the old days, a surveillance tape would be re-used, and the old footage destroyed. Now, though cloud storage is seemingly limitless, the cost to keep unnecessary surveilance footage is not in many companys’ budget. While the law does not require you to incur additional expenses to preserve all video indefinitely, a business is required to preserve surveillance video in anticipation of litigation. In Massachusetts, the duty to preserve evidence is straightforward. The duty arises when a reasonable person knows or should know that litigation is possible and that the evidence might be relevant. Commercial premises often receive notice of an accident, e.g., an ambulance arrives at their property, so claiming lack of notice will usually be difficult to prove. In order to show spoliation under Massachusetts law, you must show either a negligent or intentional destruction of evidence. Remedies are based on the degree of misconduct of the defendant. The most common remedy for spoliation is a jury instruction from the judge allowing jurors to draw an adverse inference, i.e., you can assume the defendant is hiding something harmful to their case, from the destruction of the evidence. The need to preserve potential evidence highlights the need to work with an attorney on any potential slip and fall claim. An experienced attorney will contact the defendant business to remind them of their duty to preserve any video surveillance evidence from the time of the claim. Not only does this remind the business of their duty, it also lays the foundation for any future spoliation issues, should they arise.

If you’ve been injured on someone’s else’s property, its important that you find a personal injury lawyer as soon as possible. The sooner you find a lawyer, the sooner he or she can send out a letter that asks that they preserve all videos. This will give you a much better chance of the video not magically disappearing.

]]> <![CDATA[What is a Premises Liability Case?]]> https://www.marcottelawfirm.com/blog/what-is-a-premises-liability-case/ https://www.marcottelawfirm.com/blog/what-is-a-premises-liability-case/ Mon, 12 Jul 2021 13:45:28 GMT Many lawyers use the term “premises liability,” which is a phrase that most people don’t use. Therefore, there’s often a misconception about what the term means. In reality, it’s a way to describe the duty owed by a business or property owner. These claims are a type of a negligence lawsuit, which means the focus…

]]> Many lawyers use the term “premises liability,” which is a phrase that most people don’t use. Therefore, there’s often a misconception about what the term means. In reality, it’s a way to describe the duty owed by a business or property owner. These claims are a type of a negligence lawsuit, which means the focus of a claim is usually on the duty of care owed and whether or not that duty was breached. For your reference, some common examples of these types of claims include, but are not limited to:

Because these claims are generally filed under a negligence cause of action, the key element will be “reasonable care,” or “did the property owner take reasonable precautions to keep visitors safe?” While the requirements for reasonable care owed vary from state-to-state, Massachusetts applies tiered categories for visitors, who are owed varying levels of reasonable care. The categories of visitors – from the highest duty owed to the lowest – are invitees, licensees, and trespassers. The highest duty of care owed is to an “invitee.” An invitee is someone who has the property owner’s express or implied permission to enter the property, e.g., a patron to a restaurant. These are people invited onto a property for the purpose of spending money or engaging in a business interaction. Invitees are owed a duty to keep the property reasonably safe. Due to the financial nature of the interaction, the duty of care is considered the highest Just below an invitee is a “licensee.” A licensee also has express or implied permission to enter the property, but does not have a business purpose for being there, e.g., a social guest. Massachusetts has blurred the distinction between duty owed to an invitee and licensee as both are owed the reasonable care duty. What this means in practice is that an invitee and licensee are owed a reasonable duty of care and have the right to file a lawsuit against negligence and carelessness. Finally, the lowest duty owed is to a “trespasser.” As you likely guessed, a trespasser is someone who does not have any permission – express or implied – to enter the property. However, there is still a minimal duty of care owed. This means that a trespasser cannot sue you for negligence; however, they may be able to if a hazard is “unusually dangerous.” For example, you cannot set a trap on your property for a trespasser. It is worth quickly noting one exception to the trespasser rule relates to children and is known as the “attractive nuisance” doctrine. This is why all swimming pools should have fences around them. There are three (3) common defenses to premises liability: comparative negligence; “open and obvious” danger; and in the cases of government properties, Sovereign Immunity. For the purposes of this post, we will only discuss the first two (2). As discussed in our previous Snow and Ice articles, “comparative negligence” assesses a percentage of fault on both the injured party and the property owner, that is, you both share the blame. A judge or jury assesses your percentage of relative fault and deducts that from any damages received. Under comparative negligence laws in Massachusetts, the plaintiff can only be compensated if their share of the blame is less than 51%. Another defense is that the danger was “open and obvious.” A danger or risk is “open and obvious” if the risk would be obvious to persons of average intelligence. If it is open and obvious, then a property owner does not have a duty to warn of such risks. For example, if you are at a gas station filing your car and are hit by another driver, the owner of the gas station is likely not liable for your injuries because the danger of being hit by another moving car is open and obvious to a person of average intelligence. If you are a legal entrant to a property and suffered an injury while on that property, you may be able to recover compensation for your injuries. In Massachusetts, and as is the case with many other torts in the state, the statute of limitations to bring a legal claim against a property owner is three (3) years from the date you knew or should have known about the injury. This may seem like a long time, but it helps to explore your options as soon as possible with an experienced premises liability attorney.

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