THL – TorHoerman Law

What is Premises Liability?

The legal obligations that a property owner owes to other persons within the boundaries of the owner’s property are protected under premises liability.

What are My Premises?

You should familiarize yourself with what “property” may fall under your premises. You could be held liable for accidents that occur on these properties. The more obvious places include your home, vehicles, land, etc. What many people do not realize is that these do not define the full spectrum of your “properties”. Business owners can be held accountable for their business properties, contractors are accountable for their work sites, landlords are accountable for their tenant’s living space, and the list goes on. If you own the property where an injury occurred — or an object that resulted in someone’s harm — then you can be held liable for that injury, regardless if you were on the scene when the accident occurred and even if you have never stepped foot on the property beforehand.

Why are Property Owner’s Liable for their Premises?

Premises liability is defined by “the duty of care”: an obligation that a property owner must meet in order to ensure the safety of his/her visitors.

Invitations to a property are granted to visitors from property owners, managers, and staff. There are three common types of visitors.

  • 1. Invitees: any individual invited onto a property in order to conduct business with the property owner, manager, and/or staff.
    1. 1. Example: contractors, business associates, groundskeepers
  • 2. Licenses: any individual invited onto a property on for social purposes.
    1. 1. Example: family, friends, neighbors
  • 3. Trespassers: any individual who enters the domain of private property without a prior invitation from the property owner, manager, and/or staff.
    • In general, trespassers do not have a claim against property owners for any injuries that occur while they are trespassing on the property. However, there are special circumstances that may hold the property owner liable for the injury. If the injury occurred because the property has been defined as excessively dangerous or because the property owner takes action with the intent to purposefully harm trespassers, then the owner may be held liable. The definition of excessive danger and purposeful harm differ state-by-state and even by local government regulations.

Visitors must be given consent to enter the property, otherwise, they are considered trespassers. Visitors can be invited onto a property in one or more of the following types of invitations:

  1. 1. Written: any documented form of invitation consenting to a visitor’s presence on the property.
    1. 1. Examples include letters, emails, mail, etc.
  2. 2. Spoken: word-of-mouth consent granted in a conversation between the property owner, manager, or staff and the visitor.
    1. 1. Examples include phone calls, conversations, etc.
  3. 3. Implied: consent that is implied due to a longstanding relationship, past invitations, or certain circumstances. This type of invitation is more subjective and harder to prove than the others.
    1. Examples include family members visiting each other’s homes, patients visiting their physicians, neighbors walking on other neighbor’s property.

Once an invitation has been accepted, both the property owner and the visitor must meet expectations to ensure the visitor’s safety.

How Does a Property Owner Minimize Liability?

Property owners (including managers and staff) must meet two expectations to ensure visitor’s safety.

  • 1. Make reasonable efforts to protect visitors from likely dangers
    1. 1. We say “likely” and not “all” danger because some incidents are anomalies.
  • 2. Continuing upon “likely” dangers, the second expectations of property owners are to consider foreseeable harms.
    1. 1. Again, not all incidents are predictable. But the property owner is expected to consider any-and-all plausible future incidents and do everything in their power to avoid these incidents from occurring.
      • Example: staying up to code with requirements set by law.

Expectations must be fair and attainable. Property owners cannot be held liable under unfair expectations.

Examples of unfair expectations:

A business owner hosting a work party at his/her place of business should not be expected to hire security to ensure the safety of workers’ vehicles parked in the parking lot.

A contractor should not be expected to have on-site medical personnel after hours of operation just in case a trespasser is injured on the work site.

If a property owner does not make reasonable efforts to protect visitors from likely danger or there is evidence that the property owner did not consider how to avoid injury to visitors, the property owner can be held liable for a visitor’s injury.

What are the Visitor’s Responsibilities?

Visitors are expected to mitigate any possible injuries.

Mitigating Injury: the action of reducing the severity, seriousness, or painfulness of an injury.

Visitors are expected to do everything in their power to avoid injury while on another person’s private property. If a visitor is injured, they are also expected to properly address the injury to avoid the continued aggravation of the injury which may result in increased severity of that injury.

Examples of mitigating an injury:

If there is a large pothole in the sidewalk of a private property that is obviously visible to the visitor, the visitor is expected to walk around the pothole rather than walk over it.

If the visitor does not see the pothole and trips walking over it, badly injuring their leg, the visitor is expect to seek medical attention to address the injury as soon as possible after the incident occurs. If the visitor does not seek medical attention and the injury gets worse over time, the property owner cannot be held liable for the continued worsening of the injury.

If a property owner can show that a visitor did not make an effort to mitigate their injury then they can argue that they not liable for the visitor’s injuries.

Can both parties be at fault in premises liability?

In some cases, both the property owner and the visitor may be found to hold partial responsibility for a visitor’s injury. Liability is then shared between both the owner and the visitor. Both parties must work to arbitrate liability to determine how damages will be shared.

Example of shared liability:

The visitor from the previous example did not see the pothole, tripped over it and sprained their ankle. The property owner was aware of the pothole and had planned on addressing it but had not gotten around to it yet. The visitor knew that the property owner was aware of the pothole so they decided to continue to walk on the ankle without seeking medical attention first. The sprain got much worse to the point that the injured visitor had to see a doctor. The doctor determined that the original injury was a grade 1 sprain but continued walking resulted in a grade 3 sprain.

The property owner is liable for the grade 1 sprain because it was the result of their negligence. However, the visitor is liable for all other damages because they did not mitigate the injury.

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