What You Need To Know about Premises Liability
The owner of property owes a duty of reasonable care to prevent injury to a person whose presence is known to the landowner and the injury is caused by the active conduct or the landowner. This duty is changed when the injury was caused by a defect in or a dangerous condition of the premises itself. In these cases, the status of the person on the premises determines the duty of care owed by the possessor of the premises.
When a person on the premises of another is injured as a result of a defect of the premises, the injured person falls into one of several categories. The include 1) Trespassers 2) Licensees and 3) Invitees. These designations are irrelevant if the injury is not caused by a condition of the premises but as a result of misconduct of the owner.
A "trespasser" is an individual who goes on property without the permission of the landowner or without some other right to be on the property. In this case, the entry is for the trespasser's own purpose or convenience and not for the benefit of the landowner. In this case, the landowner has a duty to refrain from willfully and wantonly causing injury to an undiscovered trespasser. If the landowner discovers the trespasser, the owner's duty to the trespasser increases. In addition to a duty to refrain from willfully and wantonly causing injury, the owner has a duty to warn a "discovered trespasser" of known dangers that are not immediately obvious.
An "uninvited licencee" is a person who is privileged to enter the property of another for the purposes of convenience, pleasure or benefit. A licensee may enter the premises when the owner has given permission to do so and this distinguishes the licensee from the trespasser. The duty owed by the licensee is essentially the same as that owed to a discovered trespasser. The landowner must warn the licensee of a defect or condition known to the landowner to be dangerous when the danger is not open to ordinary observation by the licensee.
An "invitee" or "invited licensee" involves a situation where the owner or occupier of the land has led the visitor to believe that the premises are intended to be used for the purpose for which the visitor has in fact entered the establishment, and that such a purpose was contemplated and encouraged by the occupier in the design or arrangement of the premises. The duty of care owed to this class of persons is such that the possessor of the premises 1) must use ordinary care in a) keeping the premises in a reasonably safe condition and b) correcting dangerous conditions of which the owner knows or should reasonably know, and 2) must give timely notice of hidden or concealed perils that are known or should be known to the owner, but that are not known to the person on the premises. The owner or occupier of the premises must act as a reasonably prudent person would in maintaining the premises in a safe condition. The owner or occupier must undertake reasonable steps to repair any dangers of which the owner has actual or constructive knowledge.
A child who is injured while trespassing may still bring a suit against the landowner if the injury is caused by an artificial condition on the land and all of the following conditions are met: 1) The place where the condition exists is one on which the possessor knows or has reason to know that children are likely to trespass 2) The condition is one which the possessor knows or has reason to know and which he or she realizes or should realize will involve an unreasonable risk of death or serious bodily harm to children 3) The children, because of their young age, do not discover the condition or realize the risk involved in intermeddling with it or coming into an area made dangerous by it 4) The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved 5) The possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children. Swimming pools are an example where this doctrine may come into play.
Premises liability cases come in many varieties. Examples handled by Green, Kaster and Falvey, P.A. include:
- Slip and fall where substantial injury occurs. Generally, these occur where the injured person has be invited or granted permission to be on the premises. The injured person must prove misconduct on the part of the property owner or occupier. The owner or occupier of the premises must used reasonable care to maintain the premises in a safe condition and warn the invitee of any concealed dangers. The owner or occupier, however, is not an insurer of the customer's safety. The mere fact that injury occurs on the premises of another does not mean that there is liability for the damages unless some wrongdoing has occurred. A customer still has a duty to exercise reasonable care in moving about the premises and must be alert to obvious and apparent dangers.
- Swimming pool drownings. The owner of the premises must take measures to insure that the facility is reasonably safe. The owner has an obligation to make adequate provision for life-saving and resuscitation. If such is not available, warnings must be issued. Among the factors to be considered is, for example, whether a particular piece of safety equipment or a lifeguard is available, the size of the complex, the age of the tenants, the characteristics of the pool and the extent to which the facility is used. In private pools, the owners are required to use reasonable care for children and protect against uninvited children who might have access. Green, Kaster & Falvey, P.A. has handled a number of drowning cases where the premises were not properly fenced or proper precautions for young children was not taken.
- Rape and assault on motel or business premises. The owner of a motel or business must take reasonable care to provide for the safety of guests. The degree of care is related to the circumstances of the assault, the foreseeability of the event and the history of crime in the area. Green, Kaster & Falvey, P.A. has represented crime victims in situations where there were rapes in motels, shootings where persons were withdrawing money from bank automatic teller machines and assaults in mall parking lots.
Green, Kaster & Falvey, P.A. is available to answer your questions at no charge so as to determine if you have a case where we can help.