Slip & Fall: Landlord's Should Take Notice

Virginia is one of the most difficult states in the country in which to win a slip and fall case by an injured party. Nevertheless, a jury recently awarded a Plaintiff $2.5 million against a landlord for a slip and fall. Yet, a previous jury hearing the same case presented by the same attorneys awarded $0. The vagaries of the jury system account for this stark discrepancy, but the ultimate verdict indicates that landlords need to understand their obligations to safeguard the public from injury while on their premises.

Three 1992 Virginia Supreme Court cases prevent most victims of slip & falls from succeeding. A&P Tea Co. v. Rosenberger, establishes that owners of property are not insurers or guarantors of the safety of business invitees. Colonial Stores v. Pulley states that plaintiffs must prove that the owner created the defect which caused the fall or at the very least should have known of the problem. A&P Tea Co. v. Berry instructs judges to dismiss the case if the jury must speculate in order to determine that the owner had notice of the defect.

Thus, in order to recover Plaintiffs must prove that the defendant knew or should have known of the defect which caused the fall. This standard of proof is extremely difficult since many victims do not know why they fell or cannot conclusively prove that the owner or lessor of the property actually knew a problem existed. However, violations of building codes and standards can overcome proof difficulties since many such violations are considered negligence per se with no requirement of notice.

The $2.5 million case was successful because Plaintiff introduced evidence that there was grease or greasy water on the floor of the fast food restaurant. Another case was successful because a leaky roof was not repaired after notification by a tenant. A more complex case succeeded when a succulent plant was shown to be shedding leaves because of improper care by the plant section of the department store, which also failed to sweep the area for 4 1/2 hours. In addition, a slight erosion of the owner's position is taking place regarding slip on ice cases, since the Supreme Court held that merely walking on ice or snow was not an assumption of the risk or contributory negligence.

Despite these and other cases, the landlord in Virginia has the upper hand if proper attention is paid to dangers for which there is actual notice and if proper maintenance schedules are followed.

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The above is not meant to replace legal counsel. If you'd like to speak to one of Gross & Romanick's lawyers, please call 703-273-1400 or fill out our online Information Request Form.

Abandoned Property

ISSUE: A Landlord must often deal with property seemingly abandoned by a former tenant. While the Landlord would like to dispose of or sell this abandoned property, the Landlord may not know who owns the property or if there is a recorded security interest. In some instances, the Landlord may want to sell the property to satisfy unpaid rent or transfer it to the next tenant. Before any decision can be made, the Landlord must determine whether the property is truly abandoned and whether other parties may have a legal claim to the property.

THE LAW OF FINDS: "Abandonment" according to the Law of Finds, means that the owner of the goods has voluntarily relinquished "possession with the intention of terminating his ownership and with no intention of vesting title in another."

ACTION ADVISE: If the Landlord wishes to transfer or sell the property, it should: (1) Do a complete inventory of the property by 2 witnesses; (2) Examine the property for evidence of ownership; and (3) Conduct a UCC search for recorded liens or leases.

NOTICE: The Virginia Residential Landlord and Tenant Act requires a letter to be sent to the former tenant giving a 10 day notice that unless the property is retrieved it will be considered abandoned. Normally Residential Landlords are held to a higher standard than Commercial Landlords when dealing with their tenants. Therefore, it would be appropriate to provide a 10 day notice to any person who you believe has an interest in the property, including parties with UCC claims, tenants, or names which are found on the property.

DISPOSITION: If none of these parties make a claim, the property is probably abandoned. This determination will have to be made in each situation on a case-by-case basis in conjunction with a lawyer. Non-legal factors may impact on your determination of how to dispose of the property, i.e. the value of the equipment or if it can be transferred to a new tenant in the same space. A carefully worded sale agreement of the equipment may provide some protection for the Landlord from a subsequent claimant.

The above article is not meant to replace legal counsel. If you'd like to speak to one of the attorneys at Gross & Romanick, call us at 703-273-1400 or fill out our online Information Request form.

Recent Case Aids VA Lawyers With Suspended License Defenses

On January 11, 2008, the Virginia Supreme Court reversed the conviction of an individual charged with driving a motor vehicle after being declared a habitual offender in violation of Va. Code § 46.2-357. In the case Bishop v. Commonwealth, the Virginia Supreme Court carefully scrutinized the DMV transcript that was presented as evidence by the Commonwealth Attorney to prove that the Defendant had actual notice of being declared a habitual offender.

The Supreme Court found the DMV transcript lacked proof of actual notice. Of interest to criminal defense attorneys was the Virginia Supreme Court’s view of an entry on the DMV transcript that read “Notified: 2001/03/10 by law enforcement.” This is the type of entry that prosecutors in Northern Virginia routinely rely upon to obtain convictions for driving on suspended and revoked licenses. In Bishop, the Supreme Court stated that this entry “does not specify the content of any notification … provided … and does not identify the person, agency or entity that constituted ‘law enforcement’.”

After reading the Bishop decision, attorney Jeffrey S. Romanick commented that he was pleased that the Virginia Supreme Court emphasized some of the basic principles upon which our criminal justice system relies. Mr. Romanick intends to cite the language included by the Court to emphasize the high standards of proof required at criminal trials. The Court made a point to state the following: (1) “It is elementary that the burden is on the Commonwealth to prove every essential element of the offense beyond a reasonable doubt”; (2) “In a criminal case, the defendant is entitled to an acquittal, unless his guilt is established beyond a reasonable doubt”; (3) “Because of the stringent standard of proof the law imposes upon the prosecution, [finders of fact] must acquit unless they find each element of the crime charged to have been proved beyond a reasonable doubt”; and, (4) [T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime which he is charged”.

The attorneys at Gross & Romanick, P.C. are dedicated to staying at the forefront of new case law and innovation in the Courtroom. By carefully staying abreast of the latest decisions handed down by the Appellate Courts of Virginia, the law firm of Gross & Romanick, P.C. can immediately incorporate new case law into new defenses for their clients at the trial court level. Bishop is an example of the type of case that the lawyers of Gross & Romanick, P.C. can utilize, not only in traffic court for suspended license cases, but in every criminal case in which it is necessary to emphasize that the concept of reasonable doubt remains a cornerstone of our justice system to protect the rights of our citizens.