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Premises Liability




Duties Owed By Property Owners and Occupiers

In many states, property owners and possessors owe different degrees of responsibility, or duties, to people who come onto their property, depending on how such people are categorized. The law recognizes three main categories of people who might be on someone else's property: invitees, licensees and trespassers. In states that still distinguish among these categories of people, the legal duty owed by the property owner or occupier to each category is different. It is important to speak to an experienced premises liability attorney about whether your classification as an entrant will affect your ability to recover for your injuries.

Negligence

Slip and fall accident cases generally proceed under the theory that the defendant (the landowner or occupier) was negligent. To establish negligence, an injured plaintiff must establish the existence of a duty by the defendant to conform to a specific standard of conduct; breach of that duty by the defendant; that this breach was the actual and proximate cause of the plaintiff's injury; and that the plaintiff was injured. As discussed in more detail below, the duty that a landowner owes to a particular person depends on that person's legal status as an entrant to the land.

Classification of Entrants

Under traditional common law rules, the duty that an owner, occupier or possessor of land owes a person who enters the premises depends on the status of the entrant. Entrants are typically classified as invitees, licensees or trespassers, and the duty that the landowner or occupier owes to each class of entrant is different.

Many jurisdictions still adhere to the common law status classifications today. However, some jurisdictions in the United States have rejected the common law classes of entrants as determinative of liability. Of these, some have adopted a rule that provides that an owner or occupier of land has a duty of reasonable care under all circumstances, and the status of the entrant is merely a relevant factor in determining whether the injury was foreseeable and the landowner negligent. In addition, in some states, there are statutes that govern the standard of care owed by certain landowners or occupiers to certain classes of entrants.

Invitees

An invitee is someone who enters the land in response to an express or implied invitation from the landowner, including customers at a retail store or shopping mall. An owner or occupier of land owes the highest duty to invitees. The landowner must use reasonable and ordinary care to keep the property reasonably safe for the invitee. This includes the duty to warn the invitee of non-obvious, dangerous conditions known to the landowner; to use ordinary care in active operations on the land; and to make reasonable inspections to discover dangerous conditions and make them safe. There is generally no duty to warn if the dangerous condition is so obvious that the invitee should have reasonably seen it.

While there is no precise way to measure what is reasonable care, the law defines reasonable as what a person of ordinary intelligence and judgment would do under the same circumstances. For example, it may be reasonable for a storeowner to conduct periodic inspections, say every hour or so, to look for spills or other potentially dangerous conditions and monitor and clean public areas on his or her property to make sure they are safe. However, it would probably be considered unreasonable to expect a business owner to keep watch all day long to make sure nothing is spilled or broken in the public areas. If a slip and fall case goes to trial, the jury will decide if what the property owner did was reasonable under the circumstances.

Licensees

A licensee is a person who enters the premises with the landowner's express or implied permission for his or her own purposes rather than the landowner's benefit, such as a social guest. An owner or occupier of land has a duty to warn a licensee of a dangerous condition that creates an unreasonable risk of harm if it is known to the owner or occupier and not likely to be discovered by the licensee. There is no duty to inspect for defects or to fix known defects. The owner or occupier does have a duty to exercise reasonable care in the conduct of active operations to protect a licensee he or she knows is on the property.

Trespassers

A trespasser is someone who is not authorized to be on the property or enters the land without the owner's permission. Landowners and occupiers have no duty to undiscovered trespassers. If a property owner discovers a trespasser on the property, he or she has a duty to use ordinary care to warn the trespasser or, to make safe, artificial conditions that the property owner knows involve a risk of death or serious bodily injury that the trespasser is not likely to discover. Also, if an owner knows, or should know, that there are frequent trespassers on his or her property, he or she will be liable for their injuries caused by an unsafe condition on the property if: (1) the condition is one the owner created or maintained; (2) the condition was likely to cause death or serious bodily harm; (3) the condition was such that the owner had reason to believe trespassers would not discover it; and, (4) the owner failed to exercise reasonable care to warn trespassers of the condition and the risk presented.

Trespassing Children

A different rule applies where trespassing children are involved. In the case of children who wander onto a property without authorization, property owners have a duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to children caused by artificial conditions on the land. The logic behind this exception is that children are sometimes unaware of dangers on property, and could in fact be lured to investigate dangerous conditions such as a swimming pool, abandoned well or heavy machinery. These potential hazards are referred to as "attractive nuisances." Under the attractive nuisance doctrine, a property owner has a duty to inspect his or her property to see if there are any potentially dangerous conditions that might attract children and, if there are, to act immediately to correct the unsafe condition. To establish that a property owner had this duty, the plaintiff must show that (1) there is a dangerous condition on the land of which the landowner should be aware; (2) the owner knows or should know that children are often in the area of the dangerous condition; (3) the condition is dangerous and likely to cause injury because a child cannot appreciate the risk; and (4) the expense of fixing the dangerous condition is minimal compared to the risk.

Conclusion

Whether you are able to recover from a property owner or occupier for your injuries in a premises liability case may depend on whether you are classified as an invitee, licensee or trespasser. Premises liability issues can be complex, and it is important to contact an experienced attorney to discuss your legal options and possible outcome.

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