Anyone who's been in business for any amount of time has heard from their lawyer about the duty of prevention – the duty to prevent harm.
The basic duty of prevention applies to all and means that everyone is obliged to act in such a way that there is no unjustified damage to the liberty, life, health or property of another. Simply put, there is an obligation not to cause harm by active action. Violation of this obligation leads to the injured party's claim for damages against the wrongdoer.
But then there are cases when the damage occurs not because someone did something, but on the contrary because someone did not do something. For these cases, the law states under what conditions the person who "did nothing" or "did too little" is still liable to the injured party for the damage. These are mainly situations where the person (and it can also be a company) has created a dangerous situation or has control over it and subsequently did not intervene to avert the damage or prevent its occurrence. In each specific case, however, it is necessary to assess whether the action against imminent damage is required by the circumstances of the case or the so-called habits of private life.
In a case currently being considered by the Supreme Court of the Czech Republic, a woman was injured in a shopping mall when she failed to notice a damaged area on the floor that was covered by a slightly raised plastic board attached with warning (but apparently trampled over) black and yellow adhesive tape. The injured woman sued the operator of the shopping mall for compensation for lost earnings, costs related to treatment, satisfaction for non-pecuniary damage, and compensation for pain and impaired social position. (That's plenty, isn't it?)
The court reached the following conclusions:
First – general conclusion: If the injured party suffers damage in the building, the owner is responsible for it if it did not act in such a way to prevent the unjustified damage occurring during the administration of the building. The owner is liable for damage even if it itself created or even tolerated a dangerous situation in the building without taking sufficient measures to avert the imminent damage. In such measures, the owner must consider the nature of the space in which the obstacle is located and the purpose for which the space (here the corridor) serves. Likewise, whether the measures taken by the owner to prevent injury would be sufficient will have to be examined in each instance on a case-by-case basis, taking into account the nature of the case, private life, local circumstances and the specific circumstances of the injury.
Second – specific conclusion: According to the Supreme Court, it is to be expected that the operator of a shopping mall will mark an easily overlooked unevenness on an otherwise smooth floor clearly enough to be noticed by passing customers who cannot be expected to focus on the floor. In short, even the operator in such a case must assume that customers will look at shop windows rather than underfoot. Therefore, if the owner did not mark the unevenness of the floor in a sufficiently clear manner, and the measures taken were therefore insufficient to avert the imminent damage, the owner is liable for the damage.
For owners this case shows that preventive measures are necessary but are only an effective tool to exclude liability for damage if they are adequate for the specific situation.
The rest of us may come away with a little more understanding and sympathy for the "caution wet floor" signs that sometimes act as "obstacles" for us to navigate around.
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| Head of Real Estate and Partner | Eversheds Sutherland, Prague