Premises Liability

A premises liability lawsuit holds a property owner responsible for any damages arising out of an injury on that person or entity's property. In all states, owners that occupy a property must make a reasonable effort to maintain a safe environment for visitors to it. Failure to keep the property safe for visitors results in "premises liability." Common situations that may give rise to premises liability lawsuits are:

  • Animal and Dog Bites
  • Slip and Fall Accidents
  • Dangerous Property
  • Negligent or Inadequate Security
  • Swimming Pool Injury
  • Inadequate Maintenance
  • Children on Property
  • Retail Store Liability
  • Restaurant Liability

What about injuries at apartment complexes or commercial property that is merely leased? Usually, a landlord is not responsible for the injuries of a tenant's guest because the tenant is presumed to be in control of the condition of the property. However, there are exceptions, such as for latent defects, which are concealed and dangerous conditions already existing when the tenant takes possession of the property. Another exception occurs when a landlord undertakes repairs for a tenant. The repairs must be performed in a non-negligent manner.

Different states follow different rules about who may recover for premises liability and under which conditions. Some states focus on the status of the person visiting the property to determine whether liability is appropriate. The status of a visitor in those states is usually invitee, licensee, or trespasser.

An invitee is somebody invited onto a property for a commercial purpose, such as a customer at a mall. A social guest or licensee is also present on the property at the invitation or by permission of the property owner or occupant. For invitees and licensees, the invitation is an implied promise that it is safe to be on the property. In some states, a different duty of care is owed depending on whether a visitor is an invitee or licensee, but in other states that recognize these distinctions, the highest duty of care is owed to both.

In many states that focus on the status of the visitor to evaluate liability, trespassers who are on the property without any right to be there and who are hurt are unable to recover at all. The owner or occupant must simply refrain from intentionally trying to hurt the trespasser, such as by setting traps. However, in some cases, when an owner knows it is likely there will be a trespasser, it is required to give reasonable warnings of non-obvious dangers to trespassers. Usually, the exception to this rule is a child trespasser, who may get involved with an “attractive nuisance,” like a swimming pool, and thus is owed a higher duty of care.

In other states, courts focus on the state of the property and the owner's and visitor's actions. Generally, property owner and occupants owe a duty to keep property reasonably safe and make repairs for all visitors except for trespassers. Factors that are considered when determining the duty are the circumstances under which the visitor came onto the property, the nature of the property, the reasonableness of the owner or occupant's actions to repair or warn, and the foreseeability of the injury.

An owner or occupant must regularly inspect the property to find dangerous conditions and either repair them or put up a warning so that lawful visitors are not injured. Any owner that fails to meet this duty, such as by knowing of a dangerous condition and failing to warn visitors, can be held liable for visitors' injuries that result from it.

Limitations on Recovering for Premises Liability

Most states follow the principles of comparative fault in premises liability cases. This means an injured person who is partially or fully responsible for what happened cannot recover for damages arising out of a dangerous property condition. A visitor has the duty to use reasonable care to keep himself or herself safe. To the extent the visitor fails to use reasonable care, the recovery can be reduced by his or her percentage of fault.

For example, in a state following comparative negligence, when an injured person is 10% responsible for an injury, the property owner is responsible for 90% of the injury, and the total damages are $100,000, the victim's recovery will be only $90,000. In states that follow contributory negligence, the plaintiff may be unable to recover at all if he or she is found even slightly at fault.

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