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Premises Practice Tip: Try to Find "Affirmative Conduct" in Premises Cases

Breit Cantor Grana Buckner

Proving liability in a garden variety premises liability cases is often difficult. A plaintiff must prove that the store actually knew of a dangerous condition on its premises, which is extraordinarily rare. Or the plaintiff has to prove that the store should have known of the dangerous condition, which usually requires a showing of how long the condition existed prior to the accident – again, a tough burden to carry.

But the standard changes when the store’s affirmative conduct is involved. If the store’s affirmative conduct led to a dangerous condition, then “if an ordinarily prudent person, given the fact and circumstances [the store] knew or should have known, could have foreseen the risk of danger resulting from such circumstances, [the store] had a duty to exercise reasonable care to avoid the genesis of the danger.” Memco Stores v. Yeatman, 232 Va. 50 (1986). Accordingly, foreseeability becomes an issue in the case, which makes dismissal of the case on summary judgment or a motion to strike more difficult.

Another benefit of finding affirmative conduct is that the store employee can be joined as a defendant, and this will usually destroy diversity and removal to federal court. In general, a store employee cannot be liable for “passive” conduct. For example, a plaintiff cannot prove liability against a department employee who fails to notice a spill in the area that causes the accident. If joined as a defendant, the store will likely remove the case and assert fraudulent joinder, and the employee will be dismissed. However, where there is affirmative conduct by the employee, a plaintiff can maintain a claim against the individual and defeat diversity.


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