Recently I was reading a blog article about a child who was injured on a fast food restaurant playground and a successful lawsuit holding the restaurant responsible for the injury. What surprised me was how many readers posted comments blaming the parents for letting the child play on the playground and saying it was ridiculous to hold the restaurant responsible for the child’s injuries. These comments completely ignore the duties the law places on a business owner, and what customer has the right to expect when they come onto the business property. Every time I have a case like this, I have to “educate” the jury about what Virginia law requires of a business owner. Here’s a quick primer on these responsibilities.
Virginia law requires that a business owner who opens their business to the public must use ordinary care in making its premises reasonably safe for its invitees, and warn them of known unsafe conditions on the premises. (1) “Ordinary care” is defined as the care a reasonable person would have used under the circumstances. The significance of these duties is that the business owner must think about the safety of customers before they open for business. What does that mean? Well, at a minimum it means the business owner must think about how people are injured when they are in a business. What you may not know, but a business owner certainly should, is that by far the most common cause of injury is a fall. Research shows that most of the falls are caused by a slick floor surface, by something on the floor, or by some defect in the floor itself.
Virginia law further requires that a business owner the duty of “prevision, preparation and lookout” as well as the duty of ordinary care to see that the premises are in a reasonably safe condition. “Prevision” means the business owner must look at their business property and think about how customers are going to come on the property, how they will move about the property, and what they will do on the property. The business owner must think about how a customer might be injured as they come onto and move about the property. The business owner must consider that customers will include young children (or customers with young children), elderly people, and people with disabilities that may affect their mobility or vision. In fact, the American with Disabilities Act requires that a business owner accommodate certain disabilities. Building Codes and Fire Safety Codes require that certain safety features be a part of the property design and layout.
“Preparation” means that the business owner must prepare for customers to be on the property and to be able to enter, move about and leave the property safely. The business owner must prepare for all types of customers – young, old, and disabled – and consider the safety of these customers on the property. “Lookout” means that the business owner must be on the lookout for the safety of customers and be vigilant about the potential for injuries. For instance, if it’s raining outside, the business owner must be aware that customers might track water into the store and put down or have in place mats to absorb some of that.
Virginia law says that a customer has a right to expect that the business owner will have fulfilled these duties, and does not have to be looking for danger unless the customer has some reason to know the business owner has not. And Virginia law only requires the customer to use ordinary care for his or her own safety; the customer does not have to be the most careful or very careful, but only as careful as a reasonable person would under the circumstances.
So, in the fast food restaurant case, the restaurant had a playset for children to climb as many such restaurants do. However, the playset had a concrete floor under it. The playground was in a separate part of the restaurant form the eating part. You can imagine that a family comes into the restaurant, the children may run ahead into the play area ahead of the parents. Predictably, and more importantly, foreseeably, a child climbing on the playset may fall off and hit his head on the floor. Under these facts and Virginia law, a restaurant would and should be responsible. It’s ridiculous to have a playset above a concrete floor, and that layout design shows a total disregard for the safety of customers. It’s also ridiculous to hold the parents responsible, when by law they had the right to assume that the restaurant owner had made the premises reasonably safe for them and their child.
About the Author: Clayton Allen is a Richmond personal injury attorney with Allen & Allen. He is experienced in cases involving premises liability.
1 – Southern Floor & Acoustics, Inc. v. Max-Yeboah, 267 Va. 682, 686, 594 S.E.2d 908, 910 (2004), and cases cited therein. ,