The Reasonably Safe Premises Test in PL Jury Selection
It is important to address the duties of a landowner during voir dire in premises liability cases. These duties include the duty to exercise reasonable care to make the premises reasonably safe for a business invitee. The possessor must exercise reasonable care to protect customers from unreasonable risk of harm, including in areas that look deceptively safe. Whether a condition creates an unreasonable risk of harm often turns on the knowledge of a hypothetical “reasonable person” expected to use the premises. Moreover, the possessor has a duty to take reasonable precautions to protect the invitee from dangers that are foreseeable given the uses and physical arrangement of the premises. A business owner must also inspect the property for conditions that create an unreasonable risk of harm.
When evaluating a jury pool in a premises liability case, ask why it is important to make premises safe for use, particularly in business settings. If individuals are injured upon business premises when they were drawn in for the financial gain of the possessor, jurors will be able to offer up some good suggestions as to why workplace safety is important. If a potential juror feels that the law requires too much of business owners, ask why and see who agrees and who disagrees.
It is also important to explore opinions of what constitutes an “unreasonable risk of harm” during voir dire. Start by asking which potential jurors feel that unnecessarily subjecting others to the risk of injury is acceptable. Few will likely take this position. Get jurors to agree that “unreasonable” is synonymous with “unacceptable” then ask whether doing something “as simple as [insert X, your strongest argument, here] is reasonable. Ask next if it is unreasonable not to do X. If the answer is yes then you have established that unreasonable means unacceptable and you have identified your new favorite jurors. Think jury instructions (“unreasonable”) as well as common sense (“unacceptable”).