The Law Q&A | Can store be liable for injury in parking lot?

The Law Q&A | Can store be liable for injury in parking lot?

Now that Christmas season is upon us, it's time to get away from your computer after Cyber Monday shopping so that you can go out and injure yourself in the parking lot at the mall while you are holiday shopping.

When is a business operator liable for holes or cracks in their parking lots which cause injury? Pull up a metaphorical chair and listen closely — and don't worry, metaphorical chairs can't collapse and cause injury.

A business operator generally owes the customers a duty to exercise reasonable care to maintain the premises in a reasonably safe condition. A judge determines if a duty exists under the particular facts of the claimed injury. Factors to look at are foreseeability and likelihood of injury, the burden of guarding against that injury, and the effect of a burden put on the owner to guard against such injury.

However, no duty is owed for open and obvious dangers. This is where the condition and risk are apparent to a person using ordinary perception, intelligence and judgment.

A pothole the size of Rhode Island would likely be considered open and obvious.

A business operator may yet be liable for that open and obvious hole, though, if it could be anticipated that customers exercising due care for themselves will fail to avoid that hole because they are distracted.

Let's say I see that hole in front of the store. But suppose I step out of the store and a car zips through, almost hitting me. I must jump out of the way. In doing so, dang if I didn't step into that hole and shatter my fibula. I would argue I sure was distracted by almost being killed by the car and thus stepped into that otherwise open and obvious hazard. The store then might be liable.

Suppose a hazard is not open and obvious — suppose it's a small crack and I catch my toe and fall.

Generally, you can't sue private landowners over minor surface defects except when the defect might be located where there is heavy traffic or pedestrians would also be distracted. Maybe in jumping out of the way of the car, I catch my toe in that tiny crack and shatter 14 of the 26 bones in my foot.

What about those signs posted on the light poles that say, "Not responsible for carts"? Oh really? Does that mean I can take a cart home since the store is "not responsible" for them?

The operators are trying to avoid liability for their carts that might roll into cars and people. The mere declaration they are not liable might not persuade a judge no duty existed by the store operator to corral those carts. Liability again depends on the particular facts surrounding that $35,000 paint scratch suffered by my Lamborghini.

Moral: Stay behind your computer and continue cyber shopping.

However, if you are sitting all the time, your chair (the real one, not the metaphorical one) might collapse and end up shattering four of the 33 bones in your vertebrae.

You should get out of the house and go to the mall. Leave the Lamborghini at home.

Brett Kepley is a lawyer with Land of Lincoln Legal Assistance Foundation. You can send your questions to The Law Q&A, 302 N. First St., Champaign, IL 61820. Questions may be edited for space.