Toolkit · Tort

The Premises Liability Claim Toolkit

33 U.S.C. § 905

Type
Toolkit
Jurisdiction
National
Date
2026-06-25
Topic
Tort

This toolkit assembles the working materials for a premises liability claim into modules that can be lifted and used. It supplies a ninety-second scene photography protocol, an incident report review card, a preservation letter that demands the hour before rather than the two minutes around the fall, public records request templates for police call history and weather data, an entity identification worksheet, a notice analysis grid, a comparative fault worksheet, a discovery request list, an expert retention guide keyed to hazard type, a dog bite intake sheet, a negligent security records list, a damages and lien worksheet, and a deadline calculator that flags the government notice of claim. A property owner module runs the parallel response protocol. Reference tables cover the authorities, the calendar, and the vocabulary. Every authority cited is linked to its text on uplaw.us.

The Premises Liability Claim Toolkit

Tort > Premises Liability | Published 25 June 2026 - Updated 24 August 2026 | UpLaw - uplaw.us

Module 1 takes ninety seconds, on the floor, before anyone helps you up. It decides more about the case than every other module combined.

Keywords: scene, report, preservation, entities, notice, fault, discovery, experts, damages, deadlines

Module 1 — Ninety-second scene protocol

PHOTOGRAPH BEFORE ANYONE CLEANS IT.

☐ 1. Close shot of the substance or defect ☐ 2. THE EDGES — dried rims · cart tracks · footprints · dirt · discoloration These prove duration. Duration is the case. ☐ 3. Wide shot in both directions, showing approach and context ☐ 4. The ABSENCE of any cone or warning sign ☐ 5. Something for scale — a shoe, a hand, a store item ☐ 6. Lighting conditions ☐ 7. Your shoes ☐ 8. Camera locations on walls and ceilings

☐ Witness names and phone numbers — other customers, who are neutral and who vanish within ninety seconds ☐ Manager's name ☐ Exact time; location relative to fixed landmarks ☐ Anything an employee says — especially "I told them about that" or "that's been leaking all day"

⛔ DO NOT SAY "I'M FINE." Say: "I don't know yet. I'm going to get checked out." ⛔ Do not sign a release or a medical authorization at the scene.

Module 2 — Incident report review card

Before you sign anything, check:

☐ Does it state the date, time, and precise location correctly? ☐ Does it describe what actually happened, in your words? ☐ ⚠ Does it record the substance or condition? If it says "no substance observed," say so aloud and ask for correction. ☐ Does it record that you declined or accepted medical attention, accurately? ☐ Does it say "customer states she is fine"? Have that corrected. It is the most quoted line in premises defense. ☐ Are the witnesses listed? ☐ Is there anything you did not say?

☐ Ask for a copy. If refused: photograph it on the clipboard and note that you asked. ☐ If you cannot get a correction, write on the form above your signature: "I do not agree with the description in paragraph ___."

Module 3 — Preservation letter

Send within days. Most systems overwrite in 3 to 30 days, and the defendant will otherwise save a two-minute clip around the fall — which is not the evidence you need.

"This firm represents [name] regarding an incident at [address] on [date] at approximately [time], in [precise location]. Litigation is anticipated.

You are requested and required to preserve the following and to suspend any automatic deletion or overwriting:

1. ALL video from ALL cameras with any view of the location, from two hours before to one hour after. This request is not limited to any clip already extracted. 2. The incident report and all drafts, notes, and internal communications. 3. All photographs taken by you or on your behalf. 4. All witness statements. 5. All inspection, sweep, cleaning, and maintenance logs for this location for the day and the preceding 30 days. 6. All prior incident reports for this location and this hazard type for the preceding three years. 7. Employee schedules, time records, and assignments for the shift. 8. All contracts with cleaning, maintenance, security, and snow-removal vendors. 9. All policies, procedures, and training materials on inspection and hazard response. 10. The physical condition or surface itself, unaltered, pending inspection and testing.

Failure to preserve after notice may support sanctions, including an adverse inference instruction."

☐ Sent to: the location ☐ the corporate registered agent ☐ any known insurer ☐ any vendor identified ☐ Method that proves delivery ☐ Framework: Federal Rules of Civil Procedure § 37 for lost electronically stored information; scope at Federal Rules of Civil Procedure § 26; production at Federal Rules of Civil Procedure § 34. See Issuing a Litigation Hold and Preserving ESI: A Practical Checklist

Module 4 — Public records requests

4A — Police call history (negligent security)

"Under [state public records act], I request records of all calls for service, incident reports, and offense reports for [full address, including suite or building] for [three to five years] to the present.

If the volume is large, please begin with a call-for-service log listing date, time, and offense classification. I request a fee waiver / I agree to fees up to $______."

This single request is frequently the entire negligent security case.

4B — Weather records (snow, ice, outdoor)

"I request certified climatological records for [nearest official station] for [dates], including hourly temperature, precipitation type and amount, and snow depth."

Free and archived. The question is never whether it snowed — it is when it stopped, when it thawed, and when it refroze.

4C — Other public sources

☐ Building department: permits, inspections, violations, certificates of occupancy ☐ Health department: inspection reports for food premises ☐ Elevator and escalator inspection certificates — public in most states ☐ Animal control: complaints, quarantines, citations by animal and by address ☐ Fire marshal: egress and occupancy findings ☐ The 911 recording and computer-aided dispatch log

Module 5 — Entity identification worksheet

Duty runs with possession and control, not with title. Reach the entity that could have prevented the harm.

Role Entity Source Insurer Served
Fee owner County land records ☐
Property manager Signage, tax records ☐
Tenant in control of the area Lease ☐
Anchor tenant (common areas) Lease ☐
Cleaning contractor Vendor contract ☐
Maintenance contractor Vendor contract ☐
Snow removal contractor Vendor contract ☐
Security provider Vendor contract ☐
Elevator / escalator vendor Inspection certificate ☐
General contractor (if under construction) Permits ☐

☐ Is this a work injury? Workers compensation applies against the employer, exclusive remedy bars a tort claim against them — but not against a third-party owner or vendor. See Filing and Pursuing a Workers Compensation Claim: A Practical Checklist; the maritime analogue is 33 U.S.C. § 905. ☐ Is this government property? → Module 10, immediately. ☐ Collect certificates of insurance and additional-insured endorsements — they determine who actually funds a settlement.

Module 6 — Notice analysis grid

Work down. Stop at the first theory that fits, and plead all of them.

1. NEGLIGENT CREATION — did the defendant make the condition? ☐ Yes → notice is not required at all. Plead this first. Evidence: video of an employee mopping, stocking, spilling, or moving something.

2. ACTUAL NOTICE — did anyone who worked there know? ☐ Prior complaint ☐ Employee saw it ☐ Manager was told ☐ Prior incident, same hazard, same place

3. CONSTRUCTIVE NOTICE — how long was it there?

Duration indicator Present? Photographed?
Dried or crusted edges ☐ ☐
Cart tracks through it ☐ ☐
Footprints ☐ ☐
Dirt, debris, discoloration ☐ ☐
Melted ice or condensation (cuts the other way) ☐ ☐
Employee proximity ☐ ☐
High traffic volume ☐ ☐
Good lighting and sightlines ☐ ☐

Sweep log interval the defendant set for itself: ______ Last logged inspection: ______ Incident time: ______ Gap: ______ ⚠ Test the log against employee time records.

4. MODE OF OPERATION — does this state recognize it, and does the setting fit? ☐ Self-service produce ☐ Salad bar ☐ Self-serve beverage ☐ Buffet ☐ Garden center ☐ Other customer-handled goods Where it applies, the duration element disappears.

5. NEGLIGENCE PER SE — was a code or ordinance violated? ☐ Building code ☐ Fire code ☐ Accessibility — 42 U.S.C. § 12182, 28 CFR Part 36 ☐ Workplace safety — 29 CFR Part 1910, 29 U.S.C. § 654 ☐ Local ordinance

Module 7 — Comparative fault worksheet

Regime in this state: ☐ Pure comparative — recovery reduced by the percentage, even at 90% ☐ Modified, 50% bar — no recovery at 50% or more ☐ Modified, 51% bar — no recovery above 50% ☐ Contributory negligence — any plaintiff fault bars recovery

What the defense will argue:

Argument Their evidence Our answer
Looking at a phone
Unsuitable footwear
Carrying items obstructing view
Hurrying or running
Walked past a cone or sign
Used a closed or discouraged route
Knew about the hazard from prior visits Awareness is not the same as ability to avoid — especially where it was the only route

Estimated allocation: plaintiff ______% / defendant(s) ______% ⚠ In a modified state, a 60/40 case is not a discount. It is a coin flip on total defeat. Value and negotiate it as one.

Waiver analysis, if one was signed: ☐ Ordinary negligence — often enforced ☐ Gross negligence — generally NOT enforced ☐ Signed by or for a minor — frequently unenforceable ☐ Public policy bar in a few states ☐ Conspicuousness, specificity, and whether it names the risk that occurred

Module 8 — Discovery request list

From the defendant: ☐ All video, all cameras, the full window — never accept the extracted clip ☐ Incident report and all drafts ☐ Witness statements and defendant-taken photographs ☐ Sweep, inspection, and maintenance logs plus the policy setting the interval ☐ Prior incident reports, same location and hazard type, three years — the most valuable single category ☐ Internal policies and training materials ☐ Employee schedules and time records for the shift ☐ Vendor contracts, indemnity provisions, and certificates of insurance ☐ Insurance information and premises claims history ☐ Document retention and video overwrite policies

Depositions: ☐ Store or property manager ☐ The employee who created or should have found it ☐ The person who preserved the video — underused and frequently decisive ☐ Corporate designee on inspection policy, prior incidents, and retention ☐ Vendor representative

Evidence rules: relevance Federal Rules of Evidence § 401 · business records Federal Rules of Evidence § 803 · expert reliability Federal Rules of Evidence § 702 · subsequent remedial measures inadmissible to prove negligence but admissible for control and feasibility, Federal Rules of Evidence § 407

Module 9 — Expert retention, by hazard

Hazard Expert Must inspect before
Wet floor Human factors / safety engineer The surface is replaced or refinished
Stairs Code or architectural expert Repair — measure risers, treads, uniformity, handrails
Lighting Lighting expert with a meter Fixtures are changed
Snow and ice Meteorologist — (records are archived)
Negligent security Security consultant Cameras, gates, or lighting are upgraded
Elevator / escalator Vertical transport engineer Service is performed
Dog bite Plastic surgeon; sometimes an animal behaviorist Scar maturation
Any serious injury Treating physician; life care planner; economist; vocational expert —

⚠ Coefficient-of-friction testing must be done on the actual surface, in the actual condition. Include the physical condition in the Module 3 preservation demand. ☐ Return at the same hour of night to document lighting. ☐ Photograph and measure a stair before repair — a fractional variation between risers is a recognized fall hazard.

Module 10 — Deadline calculator

Date of incident: ______

Clock Period Due Done
Video overwrite (defendant's system) 3–30 days ☐ Preservation letter sent
Preservation letter Days ☐
⚠ GOVERNMENT NOTICE OF CLAIM 60–90 days ☐
Federal administrative presentment — 28 U.S.C. § 2675 2 years ☐
Personal injury limitation 1–6 years by state ☐
Statute of repose (builder, designer) Runs from substantial completion ☐
Contractual limitation (lease, ticket, membership) As written ☐
Medical payments claim Policy terms ☐

Government property screen: ☐ Sidewalk ☐ School ☐ Park ☐ Transit ☐ Public hospital ☐ Municipal building ☐ Federal facility If any box is checked: identify the correct office, the correct form, and the correct deadline today. Federal framework: waiver at 28 U.S.C. § 1346; liability measured like a private person's, 28 U.S.C. § 2674; exceptions including discretionary function at 28 U.S.C. § 2680.

Module 11 — Dog bite intake

Animal: breed ______ size ______ name ______ Owner: ______ Address: ______ Was the animal restrained? ______ Where did it occur? ______ Provoked? ______

☐ Medical treatment obtained ☐ Wounds photographed before treatment, and weekly during healing ☐ Reported to animal control on ______ — the same day; this creates the record ☐ Rabies vaccination record obtained ☐ Animal control history requested — prior complaints, quarantines, citations, by animal and by address ☐ Witnesses identified ☐ Regime: ☐ strict liability by statute ☐ "one bite" / scienter — if scienter, gather prior aggression evidence: bites, lunges, warning signs, confinement practices, neighbor complaints ☐ Landlord exposure — did the landlord know of the animal and have the ability to require removal? ☐ Policy identified — homeowners or renters liability. ⚠ Check for breed exclusions. ☐ Defenses anticipated: provocation ☐ trespass ☐ handler or veterinarian rule ☐ ☐ Damages — scarring documented professionally over time; psychological evaluation where a child is involved

Module 12 — Negligent security records

☐ Police call history for the address, 3–5 years — Module 4A. Frequently the entire case. ☐ The owner's own incident reports ☐ Prior tenant or guest complaints about lighting, locks, gates, loitering ☐ Security measures that existed: cameras ☐ working or decorative? ☐ lighting ☐ measured? ☐ gates ☐ functioning? ☐ guards ☐ actually posted? ☐ Guard company contract, post orders, and shift logs ☐ Any promise of security in a lease, brochure, or listing — can create a duty that would not otherwise exist ☐ Neighborhood crime data ☐ Security expert retained ☐ Foreseeability test in this state: ☐ prior similar incidents ☐ totality of circumstances ☐ balancing ☐ Superseding cause defense anticipated — the answer is always foreseeability ☐ Landlord duties cross-check: Landlord and Tenant Law: A Comprehensive Guide to Leases, Habitability, Deposits, and Eviction

Module 13 — Damages and lien worksheet

Category Amount Documentation
Past medical $ Records and bills
Future medical $ Physician or life care planner
Past wage loss $ Employer letter, tax records
Future earning capacity $ Vocational and economic experts
Out-of-pocket $ Receipts
Mileage $ Log
Pain, suffering, loss of enjoyment $ Testimony, before-and-after witnesses
Permanent impairment or disfigurement $ Rating, photographs
GROSS $
Lien Amount asserted Negotiated to Resolved
Health plan ☐
Medicare ☐
Medicaid ☐
Providers / letters of protection ☐
Workers compensation carrier ☐

Gross $______ − liens $______ − fees $______ − costs $______ = NET $______ ☐ Comparative fault reduction applied: ______% ☐ Medical payments coverage claimed — a small no-fault benefit in many premises and homeowners policies, available immediately and routinely never claimed ☐ Gross-versus-net conversation held at the FIRST meeting

Module 14 — Property owner response protocol

At the scene ☐ Aid first, always ☐ PHOTOGRAPH THE CONDITION BEFORE CLEANING IT — defendants who do this win; defendants who clean first lose, because the plaintiff's description becomes the only description ☐ Cone, then clean, then log ☐ Witness names, including the customer's ☐ Factual report only — no characterization, no speculation, and do not record "customer states she is fine" ☐ ⛔ No release requested at the scene

Within hours ☐ Preserve a WIDE video window — one hour before and after, all cameras ☐ Notify the insurer and any indemnifying vendor ☐ Issue a litigation hold; suspend auto-deletion

Within days ☐ Review the inspection log — was it followed on the day? ☐ Collect vendor certificates of insurance and tender where appropriate ☐ Fix the condition

Ongoing ☐ Realistic inspection interval that is actually performed — an hourly sweep nobody does is worse than a two-hour sweep everyone does ☐ Contemporaneous logging, initialed at the time ☐ Higher frequency at entrances in wet weather, produce, self-service beverages, restrooms ☐ Lighting measured and recorded, particularly in parking areas ☐ Security matched to the actual crime history of the address, reviewed annually ☐ When the same hazard recurs at the same location, fix the condition rather than the paperwork

Reference table — the authorities

Provision Subject
28 U.S.C. § 1346 Federal Tort Claims Act — waiver of immunity
28 U.S.C. § 2674 Liability measured like a private person's
28 U.S.C. § 2675 Administrative presentment prerequisite
28 U.S.C. § 2680 Exceptions, including discretionary function
42 U.S.C. § 12181 Public accommodation definitions
42 U.S.C. § 12182 Accessibility obligation
42 U.S.C. § 12188 Enforcement
28 CFR Part 36 Accessibility standards
29 U.S.C. § 654 OSHA general duty
29 CFR Part 1910 Workplace safety standards
33 U.S.C. § 905 Longshore exclusivity and vessel negligence
42 U.S.C. § 3604 Housing discrimination
42 CFR Part 483 Long-term care facility requirements
Federal Rules of Civil Procedure § 26 Discovery scope
Federal Rules of Civil Procedure § 34 Production
Federal Rules of Civil Procedure § 37 Spoliation sanctions
Federal Rules of Evidence § 401 Relevance
Federal Rules of Evidence § 407 Subsequent remedial measures
Federal Rules of Evidence § 702 Expert reliability
Federal Rules of Evidence § 803 Business records

Leading case: Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625 (1959), rejecting the common-law entrant classifications in favor of reasonable care.

Reference table — the calendar

When What
Ninety seconds Module 1
Before signing Module 2
Same day Medical care with a precise mechanism
Within days Module 3 preservation letter
Week 1 Modules 4 and 5
60–90 days Government notice of claim — Module 10
Weeks 2–8 Modules 6, 7, 9
On filing Module 8
Before repair Module 9 inspections
Pre-settlement Module 13

Reference table — what the words mean

The term What it actually means
"Constructive notice" How long was it there — proved by the edges of the puddle
"Negligent creation" The defendant made it. No notice element at all
"Mode of operation" The business model makes this hazard predictable
"Open and obvious" A defense that fails where the hazardous route was the only route
"Sweep log" The standard the defendant set for itself — test it against time records
"The video" Not the two-minute clip. The hour before
"Spoliation" Evidence lost after notice — and an inference that can supply the missing element
"Notice of claim" A 60-to-90-day government deadline nobody thinks about
"Statute of repose" Runs from construction, not from injury
"Modified comparative fault" At 50 or 51 percent, not a discount — a total defeat

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