Premises Liability

Premises liability law relates to the legal responsibility of owners and occupiers of land and buildings for injuries sustained on their property. An occupier or possessor of property is often treated in the same manner as a landowner. The actual liability of these various individuals can vary depending on the rules and principles adopted in the particular jurisdiction whose law applies. In some states, the court will focus on the status of the injured visitor-whether he or she was supposed to be on the property-in determining the liability of the owner or occupier. In other states, the focus is on the condition of the property and the activities of both the owner and visitor.

In states that focus only on the status of the visitor to the property, there are generally three different labels that may apply: invitee, licensee, or trespasser. An invitee, as the name connotes, is someone who was invited onto the property of another. This invitation is generally held to carry with it the representation that reasonable care was exercised to assure the suitability of the premises. A licensee, by contrast, enters the property for his or her own purpose and, as such, is present at the consent of the owner. Finally, a trespasser enters without any right whatsoever to do so. In the case of licensees and trespassers, there is no implied representation that reasonable care has been exercised in favor of the visitor.

In states where consideration is given to the condition of the property and the activities of the owner and visitor, a uniform standard of care is applied to both invitees and licensees. This uniform standard requires the exercise of reasonable care for the safety of visitors other than trespassers. To satisfy the reasonableness standard owed to invitees and licensees, an owner has a continuing duty to inspect the property in order to identify dangerous conditions and either repair them or post warnings as appropriate. An owner can be found liable if he or she has knowledge of a dangerous condition but fails to act on that knowledge.

Determining whether the standard of reasonableness required by an owner toward licensees (and in some states, both licensees and invitees) has been met requires an examination of numerous factors including, among others, the circumstances under which the visitor entered the property, the use to which the property is put, the foreseeability of the harm, the reasonableness of repair or warning, and the ease of accomplishing the same.

With respect to trespassers, if the owner knows that it is likely that trespassers will enter the property, he or she may be charged with a duty to provide reasonable warning to prevent injury. This requirement applies only with respect to artificial conditions that the owner has either created or maintains and knows may be likely to cause serious injury or death, and when the owner believes that potential trespassers will not discover the condition. Thus, even in cases in which there is a dangerous artificial condition, a landowner does not necessarily need to give warning to potential trespassers if the condition is obvious.

A landowner's duty to warn is different with respect to certain cases involving children. In those cases, occasionally referred to as "attractive nuisance" cases, the defendant must give a warning if he or she knows, or should know, that children are likely to trespass and that the condition was likely to cause serious bodily injury or death. The children, because of their tender age, must fail to discover the condition or fail to realize the extremity of the risk. Finally, the defendant's need to maintain the condition, and the burden of eliminating it, must be low when compared with the risk to children if the condition is kept, and the defendant must have failed to exercise reasonable care to eliminate the danger or otherwise protect children.

A common defense raised on premises liability cases is the injured party's comparative or contributory fault. A visitor has a duty, in most cases, to exercise reasonable care for his or her own safety. When reasonable care is not exercised, the plaintiff's recovery may be reduced, or even completely negated, by his or her own negligence. A landowner may also defend based on lack of knowledge. In the typical case, the visitor must prove that the owner had or should have had knowledge of the allegedly dangerous condition in order for liability to attach, and this is quite often difficult to prove.

Special rules of liability may apply in cases involving lessors of property. The general rule provides that a lessor is not liable to a lessee, or anyone else, for physical harm caused by a condition on the property. This general rule has numerous important exceptions, however. For example, a lessor is responsible for injuries that occur as a result of a latent defect that existed at the time the lessee took possession of the property, but only if the lessor knew or had reason to know of the defect. A latent defect is a concealed, unreasonably dangerous condition, either artificial or natural. Similarly, if the lessor agreed to undertake a repair for the benefit of the lessee, it must be done in a non-negligent manner. Other exceptions may apply in special circumstances, such as when the lessor opens the property for admission of the public, or when the lessor maintains control of the premises.

Premises liability cases turn on the particular facts involved, as well as the law of the specific jurisdiction in which the claims arose. An attorney experienced in premises liability law can best advise on whether a valid claim exists and potential defenses to liability, so as to ensure a fair and just outcome.

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