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    • COMMERCIAL PREMISES LIABILITY IN NIGERIA: THE NEED FOR BUSINESS OWNERS TO OBSERVE DUE DILIGENCE

    INTRODUCTION

    In Nigeria, it is the responsibility of business or property owners to ensure the safety of anyone that enters the premises, and failure to ensure their safety can lead to legal action for commercial premises liability which is a type of ordinary negligence. In the Nigerian business setting, the general law on negligence regulates the affairs of commercial premises liability. A business owner is responsible for the security of any individual who enters his establishment, regardless of whether he is the owner of the premises or not.

    The thrust of this article is to ascertain the liability a business owner or a property owner can incur for an accident or omission that occurs in his business premises and the need for them to exercise due diligence to avoid further liability.

    WHAT IS COMMERCIAL PREMISES LIABILITY?

    Commercial premises liability is the liability a business owner or property owner incurs as a result of a negligent act or omission within his business premises.

    Business owners generally have an obligation to keep the property in a reasonably safe condition, so as to avoid injuries to customers or other individuals. This duty includes an obligation to make reasonable inspections of the property to ensure that it is in a safe condition. Business owners are not expected to prevent every injury, but they are expected to take steps to reduce the chances of people being injured while visiting the premises. Business owners may be held accountable for injuries caused by their negligence through a commercial premises liability claim.

    Nonetheless, just because a person gets injured on a property does not automatically constitute negligence by the property owner. The property may actually be in a state of an unsafe condition at the time of the accident, but the condition does not make the owner negligent. The key to prevailing in a premises liability case lies in proving that the property owner did not exercise reasonable care with respect to the maintenance or ownership of the property.[1]

    TYPES OF COMMERCIAL PREMISES LIABILITY

    1. Slip and Fall Accidents: This is a situation wherein a business owner is accountable for an individual slipping/tripping and falling on their premises. This can happen due to such dangerous conditions as damp floors, torn carpeting, poor lighting, messy aisles, or other hazards inside the building.[2]
    2. Building Defects: When a property owner does not conduct regular maintenance on the building, risks will occur. When problems develop, owners must resolve the issue as soon as possible. They also have a duty to alert customers to hazardous conditions until they are fixed.[3]
    3. Elevator and escalator accidents
    4. Swimming pool accidents
    5. Amusement park accidents
    6. Fire
    7. Water leaks

    DETERMINATION OF LIABILITY

    In order to determine whom the business owner is liable to in commercial premises liability suit, certain factors will be considered. They include:

    1. Legal status of the victim: In a claim for commercial premises liability, it is very fundamental to identify the status of the victim in the premises where such negligent act or omission occurred.  The status of the victim could be any of the following:

    1. Employee: A person employed by a business or property owner to work on the premises.
    2. Customer: a person allowed on the property for commercial reasons.
    3. Social visitor: a welcome visitor to the commercial property.
    4. Licensee: someone who enters the property for his or her own purpose, like a repair person or vendor, and is present at the approval of the owner.
    5. Trespasser: Someone who unlawfully enters one’s property without permission. Despite not having the express or implied consent of the business owner, the owner should not engage in activities that will intentionally harm the trespasser if he is aware of the intrusion on the premises.

    GROUNDS FOR A PREMISES LIABILITY CLAIM

    In order to have grounds for a premises liability suit, an individual must demonstrate that it was triggered by a hazardous condition of which the business owner was aware. This assertion requires proof that the owner created the hazardous condition, knew it existed and was negligent in getting it fixed. These cases frequently depend upon whether the business owner acted with care to prevent a slip and fall, and whether the customer was careless by failing to see or avoid the condition that triggered the accident.[4]

    ELEMENTS TO PROVE IN AN ACTION FOR COMMERCIAL PREMISES LIABILITY

    Premises liability cause of action is merely a type of ordinary negligence action. Negligence is the omission or failure to do something which a reasonable man under similar circumstances can do or the doing of something which a reasonable or prudent man would not do.[5] To succeed in an action for commercial premises liability, the claimant must establish the following:

    1. The property or business owner owed a legal duty of care to the claimant. Property or business owners owe a duty of care to individuals who are legally on the premises including customers and people who are invited to the property. Duty of care means taking reasonable care to avoid acts/omissions which one can reasonably foresee would be likely to injure his neighbour.[6]

    Before the accrual of liability, however, the basic requirement of the law is that the defendant must owe a duty of care to the plaintiff. Where there is no such notional duty to exercise, negligence will have no legs to stand and any claim premised thereon will fail.[7]If no duty of care is owed, then it is immaterial that the claimant suffered damage by reason of the defendant’s negligence.

    1. The property owner breached this duty by allowing an unsafe condition to exist on the property. Foreseeability is often a key factor in premises liability claims. If the property owner knew or had reason to know that a condition would lead to a visitor’s injury, the property owner will likely be considered negligent if he or she failed to remedy or warn of the unsafe condition.

    The position of the law in the case of negligence is that the claimant must be able to link the breach of duty of care that occasioned the injury to the defendant. This to my mind is to say that the cause of the injury has to be traced to the act or omission of the defendant.[8]

    1. The claimant was injured because of the business owner’s negligence. Often, medical records and testimony from medical experts can be used to prove the causal relationship between the business owner’s negligence and the claimant’s injuries.
    1. The claimant suffered damages as a result of the injuries. It is a basic principle of law that there can be no action in negligence unless there is damage. Negligence is only actionable if the actual damage is proved. The gist of the action is damage and there is even no right of action for nominal damages. Negligence alone does not give a cause of action; damage alone does not give a cause of action; the two must co-exist.[9]

    Victims of negligence associated with the commercial property must prove that either the property owner or the business owner’s neglect caused their injuries. While owners have a duty to keep their property safe, the law does not impose an unreasonable level of care on their part. An owner is thought to be negligent if they have not maintained an adequate level of care in keeping the property free from avoidable hazards.[10]

     AVAILABLE DEFENCE FOR A DEFENDANT

    1. Contributory Negligence: Contributory negligence means that the party charged is primarily liable but that the party charging him has ‘contributed’, by his own negligence to what had eventually happened.[11]The principle is that the measure of damages is to be apportioned according to the proportion, in which the parties are responsible. [12]

    Actually, contributory negligence is not a defence to an action of negligence. However, where any person suffers damages as a result of his own fault and partly of the fault of any other person, a claim in respect of that damage shall not be defeated by reasons of the fault of the person suffering the damage but the damages recoverable in respect thereof shall be reduced to such extent as the Court thinks fit.[13]

    SAFEGUARD AGAINST COMMERCIAL PREMISES LIABILITY

    1. Inspection of premises: Business or property owners can conduct routine inspection around the premises with the aim of determining possible threats or fault in the premises to avoid causing harm to users of the premises.

    2. Correction of problems: It is apposite that upon discovery of any fault or possible threat in the premises after the conduct of inspection that the fault or threat should be corrected immediately or as soon as possible to avoid causing harm to anyone.

    3. Caution: It is fundamental for the business or property owner to put up a warning or a conspicuous caution sign in any particular spot of the premises that is faulty or a possible threat to persons coming into the premises.

    4. Insurance: It is advisable that every business or property owner should have general coverage insurance.  One of the advantages of having general cover insurance is, peradventure the claimant succeeds in action for commercial premises liability despite taking the above-mentioned safeguards, it will not adversely affect the business or the property rather the insurance company will take care of the judgment debt.

    CONCLUSION

    If you have been injured on business premises, you may have a premises liability claim. This means you can seek compensation for things such as medical expenses, lost wages, and pain and suffering. While money will not get you back all of what you may have lost, it can certainly help on the road to recovery.

    However, as a business or property owner, in order to avoid losing your money to a claimant in a claim for commercial premises liability, it is expedient to follow the safeguard measures mentioned earlier. The need to take due diligence encompasses following the safeguard mentioned above and ensuring that your business or property has general insurance coverage.

    About the Author

    Chidera Nwokeke is a graduate of Law from Ebonyi State University, a law School candidate. He is academically motivated and has passion for research in several areas of law. He is a member of Amnesty International. He has a keen interest in dispute resolution, Litigation, Human Right and Corporate Law Practice. He can be reached at Nwokekechidera@gmail.com or 08120945787

    [1]  “What You Need to Know About Premises Liability” available at https://resultsyoudeserve.com/blog/what-you-need-to-know-about-premises-liability/ accessed on 4th January,2021

    [2] “Commercial premises liability” available at https://www.torklaw.com/practice-areas/premises-liability/commercial/  accessed on 4th January, 2021

    [3] Supra

    [4] “Commercial premises liability” available at https://www.torklaw.com/practice-areas/premises-liability/commercial/ accessed on 4th January, 2021

    [5] Chukwuma & ors v Awoh (2018) LPELR-CA/E/346/2010; Adesina v People of Lagos State (2019) LPELR-SC.622/2014; Ighrerinovo V. S.C.C. Nig Ltd & Ors (2013) LPELR 20336

    [6] Oilserv Ltd v. L. A. Ibeanu & Company Nigeria Ltd & Anor (2007) LPELR-CA/PH/294/2006

    [7] Hamza v. Kure (2010) LPELR-SC.227/2001

    [8] 7up Bottling Company Plc V. Emmanuel (2013) LPELR-CA/I/74/2009; Ogbiri vs. N.A.O.C. Ltd (2010) 14 NWLR (Pt. 1213) 208; Anyah vs. Imo Concorde Hotels Ltd (2002) 12 SC. (Pt. 11) 77

    [9] Makwe v. Nwukor & Anor (2001) LPELR-SC.100/1996; P.W. Nig Ltd v. Mansel Motors Ltd & Anor (2017) LPELR-CA/J/240/2016

    [10] Ibid n4

    [11] Evans VS Bakare (1973) LPELR-1176(SC); Stemco Ltd v. Essien (2019) LPELR-CA/C/259/2017

    [12] Ololo v Nig. Agip Oil Ltd (2001) 13 NWLR (PT. 729) 88; Learn Africa Plc v Oko (2018) LPELR-CA/C/323/2016)

    [13] Tasalla v Ba’are & Anor (2018) LPELR-CA/S/115/2015

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