Premises Liability
By Aaron Larson
March, 2005
Contents
- Premises Liability
- Duties of the Person In Possession
- Negligent Security
- Slip and Fall / Trip and Fall
- Hazardous Activities
Premises liability law refers to the responsibility of the owner or person in possession of land or premises responsible for the safety of other people who enter their premises. The laws of premises liability can vary enormously between states.
Premises Liability
Under premises liability law, a person is said to "possess" land or premises when:
- The person occupies the land or premises with the intent to control it;
- The person formerly occupied the land or premises with the intent to control it, where no other person has subsequently occupied the land or premises with intent to control it; or
- The person is entitled to immediate occupation of the land or premises, if no other person is in possession as just defined.
Duties of the Person In Possession
Although some states have abandoned this approach, when determining liability under traditional premises liability law it is necessary to first determine if the plaintiff was an "invitee", a "licensee", or a "trespasser". The duties of the person in possession can vary significantly depending upon how the plaintiff is classified. In the definitions below, the term "premises" includes land, premises, or places of business. The term "possessor" means the person in possession of the premises.
Invitee: The greatest protections under traditional premises liability law go to the invitee, who is a person invited to enter or remain on the premises for a commercial benefit to the possessor of premises, or for a purpose directly or indirectly connected with business dealings with the possessor. Such an invitation may be express or implied. For example, as a grocery store actively invites the public to come upon its premises for the purpose of purchasing merchandise, while on the premises a customer in a grocery store is classified as an invitee.
Traditionally a possessor has a duty to use ordinary care to warn or otherwise protect an invitee from risks of harm from a condition on the possessor's premises if:
- the risk of harm is unreasonable, and
- the possessor knows, or in the exercise of ordinary care should have known, of the condition, and should realize that it involves an unreasonable risk of harm to an invitee.
The possessor may have a duty to periodically inspect the premises for the introduction of hazards to invitees. For example, a grocery store may have a duty to periodically inspect its floors for the presence of spilled or broken merchandise, and to ensure that its products are properly stored and unlikely to fall from its shelves.
Licensee: The second highest legal protection is extended to the licensee. A licensee is a person who, with the express or implied permission of the owner or person in control of the premises, is invited to enter or remain on the premises for any purpose other than a business or commercial one. A social guest is classified as a licensee, not an invitee.
Traditionally, a possessor of premises is liable for physical harm caused to a licensee by a condition on the premises provided that the plaintiff establishes all three of the following elements:
- The possessor knew or should have known of the condition, should have realized that the condition involved an unreasonable risk of harm to the licensee, and should have expected that the licensee would not discover or realize the danger posed by the condition;
- The possessor failed to exercise reasonable care to remedy the condition so as to make it safe, or to warn the licensee of the condition and the risk involved; and
- The licensee did not know , and did not have reason to know, of the condition and the risk involved.
Thus, if a homeowner knows that one of the steps to the back porch is broken (but would not appear to be broken to a reasonably observant individual), the homeowner may be liable to a guest who, without notice of the broken step, suffers injury when the step collapses.
Trespasser: The least legal protection is extended to the trespasser, a person who goes upon the premises of another for his or her own purposes, without an express or implied invitation, and not in the performance of any duty to the owner. Traditionally it is not necessary for a defendant to establish that the trespasser had unlawful intent in making such an entry.
Where premises owners are not aware of the presence of trespassers, they traditionally have no duty to warn potential trespassers of any dangers or to make their premises safe for the benefit of potential trespassers. If the premises owner is aware of the presence of trespassers, the premises owner may be obligated to exercise ordinary care in relation to the safety of the trespassers.
A traditional exception to the limited duties owed to a trespasser is the "attractive nuisance". Under this doctrine, where something upon the premises poses a particular attraction (and danger) to children, the premises owner must take appropriate precautions to safeguard even trespassing children against the danger. For example, young children may be attracted to a pond or a swimming pool on somebody else's property, but don't have an adult appreciation for either the danger posed by such a body of water or their own limitations in their ability to extricate themselves from such a danger.
The duties of a premises owner are traditionally nondelegable. Thus, the person in possession of premises cannot escape responsibility for a plaintiff's injury merely because he has contracted with a company to maintain the premises. Thus a business may remain liable for the condition of its parking lot, even after it has hired a landscaping company to maintain the parking lot and to remove any snow and ice. Similarly, a landlord remains liable for the condition of an apartment complex it owns, even if it has contracted with a property management company to provide all service and maintenance in relation to the apartment complex.
Negligent Security
The nature and extent of negligent security law varies enormously between states, with some states finding virtually no circumstance where premises owners can be held responsible for the acts of others on their premises, and others defining a relatively broad duty to provide security against foreseeable crime. In a business context, negligent security cases often involve parking structures and parking lots, where after being injured by a mugger or other criminal the plaintiff alleges that due to a history of prior criminal activity on the property or in the neighborhood, the landlord violated a duty to take adequate security measures - perhaps even posting a security guard - to maintain proper security. Within a residential context, such claims are often made in relation to the security of common areas of an apartment building (those which can be accessed by all tenants), or in relation to improperly maintained locks and security systems.
Slip and Fall / Trip and Fall
The slip and fall, or trip and fall, case is one of the most ridiculed personal injury cases, due to a broad perception that the plaintiff seeks to sue the defendant for injuries resulting from his or her own clumsiness. There are often strong defenses available to a property owner, such as the assertion that a condition was "open and obvious", meaning that a reasonably careful person in the position of the plaintiff would have observed and avoided the hazard. A premises owner may also be able to argue "lack of notice", such that even when it would have an obvious duty to cure the hazard on its premises, it cannot be liable because it didn't know of the danger and had no reasonable chance of identifying the danger before the plaintiff's injury occurred.
Premises owners are typically charged with clearing public sidewalks in front of their premises, and to maintain their premises so as not to pose a danger to members of the public who are passing by on a public street or sidewalk. At the same time, many jurisdictions permit a premises owner to defend against injuries resulting from snow, ice or claimed defects by asserting that the hazard which caused the fall was "open and obvious", or (in relation to water, ice, and snow) resulted from natural accumulation or runoff as opposed to a danger they somehow helped create.
The strongest premises liability cases often involve a hazard created by the possessor of the premises. For example, the possessor may remove a fence, leaving deep holes where the fence posts had been, and fail to warn visitors that as a result the premises contain deep, dangerous holes obscured by grass. However, although a similar trip hazard may well be posed, liability is not as clear when the hazard is from holes created by burrowing animals.
Hazardous Activities
When a premises owner engages in particularly hazardous activities, the owner may have a heightened duty of care even in relation to trespassers. For example, if the premises are being used as a safari park, the premises owner likely has both a duty to post warnings around the perimeter of the park as a warning to potential trespassers, as well as a duty to provide sufficient fencing both inside and outside the park to protect patrons and neighbors from the wild animals within its confines. Possessors of wild animals are often strictly liable for injuries they inflict, meaning that under most circumstances if the wild animal they keep bites or attacks somebody, they will be liable for the injuries that result.