PREMISES LIABILITY

When someone is injured as a result of unsafe property or building conditions, they may have a right to make a claim for their damages against the owner of the property. Many homeowners and business owners fail to secure a sufficient level of liability insurance to cover the amount of any damages from an accident on their property. If the premises liability insurance is not sufficient to cover the claim, then the homeowner or business owner will become personally responsible for the damages.

The landowner's duty to protect an entrant on the land depends on how the entrant is classified. The entrant on the land can be classified as a trespasser, licensee, or invitee. The landowner's duties are different for each type of entrant. Of course, the landowner owes less of a duty to protect the trespasser then the other types of entrants. The landowner's duty of care is highest for business invitees. Some states, however, like New York, have done away with these multiple classifications in favor of one standard of "reasonableness under the circumstances" of a particular case.

INVITEE

There are two versions of invitees- business visitor and one who enters as a result of public invitation.

The Business Visitor

The business visitor includes those entrants on the land that share some business purpose with the landowner. For example, an entrant that is a prospective customer in a store, even if the customer does not intend to make a purchase is a business invitee. All that is required is some prospective advantage to the landowner (for instance, the expectation that the entrant will return to that store when he is ready to make a purchase). An employee is also considered an invitee. The duty a landowner owes to a business visitor is to ensure the premises are free of defects and safe for the public as a whole. The landowner also has an absolute obligation to repair any dangerous conditions on the property and to warn any business visitors of hidden defects that have not been repaired.

The Public Invitation

Most courts today accept a broad definition of public invitation which includes, as an invitee, any person on land open to the public or to the class of the public of which the entrant is a member. For example, visitors in hospitals and users of public parks, though having no business purpose on the land are invitees and entitled to ordinary care.

Invitees are usually people the landowner wishes to be on the land. Invitees are entitled to ordinary care from the landowner. Ordinary care may require only a warning in some cases, but, in other cases, ordinary care may require active efforts by the landowner to make the premises safe. For example, active effort may be required when the invitee may be distracted and thus unable to protect himself even when he knows of the danger.

LICENSEE

A licensee can best be described as one who's presence on the land is tolerated or permitted and thus not a trespasser, but who technically does not qualify as an invitee. For example, social guests are usually considered licensees even if the landowner expressly invites the social guest onto his property provided the guest does not stray from the area of the property the homeowner intended.

Licensees are treated somewhat better than trespassers. However, the landowner owes no duty to inspect the premises or make them reasonably safe. Instead, the landowner is liable only if he knows or has reason to know of the dangerous condition on the land and should realize this condition is dangerous. Additionally, the landowner must have some reason to think that the licensee might encounter the dangerous condition. For example, if a licensee is permitted to use a homeowner's swimming pool, but instead enters the master bedroom in the house and slips on the floor, then the licensee would generally not have a claim against the landowner for injuries that resulted from the fall.

TRESPASSER

An entrant is classified as a trespasser for purposes of determining the landowner's duty in any case in which the entrant has no privilege to be on the land.

General Duties to Trespasser

Traditionally, the landowner owed only a duty not to intentionally, wantonly, or recklessly injure the trespasser. Therefore, the landowner was not liable for ordinary negligence toward the trespasser.

However, today court are more less likely to find that landowners owe any duty to a trespasser, with one important exception. The landowner owes a duty not to wantonly inflict injury upon a "mere" trespasser who does not intend to commit a crime on the property.

Duties to Child Trespassers

Since the law has always recognized the propensity of children to run about, climb and play, landowners usually owe a higher duty of care to trespassing children under the following conditions:

1. trespass by children is reasonably foreseeable; and

2. the landowner knows or has reason to know of the danger; and 

3. there is reason to think the child, by reason of his age, will not be able to protect himself from the danger.

Owners who have created an artificial or man-made condition which they have reason to believe children may trespass upon, or whose land includes something that may be expected to attract children, are under a duty to provide such care as a reasonably prudent person would take to prevent injury. For example, when a homeowner has a swimming pool in his or her backyard, the homeowner owes a higher duty of care to a child trespasser. The homeowner must take extra precautions to ensure that a secure fence surrounds the property, so that a child will not be able to trespass onto the property and accidentally drown in the pool.

Premise Security Liability

A business owner has a duty to provide a safe place for its employees to work and its customers to visit. Claims against companies for injuries resulting from the criminal violence of third parties on the companies premises has increased dramatically over the past 10 years. Because the perpetrator of a rape, armed robbery, or murder is often not apprehended (or even if he is apprehended he is usually judgment proof), victims are seeking compensation for their injuries from the employer or landowner.

A recent study of premise security liability throughout the United States found that the main targets of these lawsuits were residential apartment building owners and hotel and motel owners. Retail owners, restaurants and bars, as well as a few other types of businesses made up the remaining 44% of companies sued for inadequate premise security liability.

Although a landowner has no legal duty to protect another from the criminal acts of a third person, a landowner's duty may arise when the criminal conduct of a third party is the foreseeable result of a landowner's negligence. When criminal conduct of a third party is foreseeable, the landowner has a duty to prevent injuries to invitees if it reasonably appears or should appear to them that other innocent persons may be injured on the property.

If a business is in a high crime area, then the business should hire a safety consultant to conduct an inspection. Through this inspection the consultant can determine the feasibility of taking additional safety measures. These measures can include installing security guards and security gates, security surveillance and alarm systems. Less expensive measures include installing proper locking devices on all doors. Additionally, in especially high crime areas, hotels and motels may have a duty to warn customers about the high-crime nature of the neighborhood and the importance of taking extra safety precautions to avoid being the victim of a crime.

Should you require assistance with a Premises Liability issue, please contact us for an immediate free evaluation of your situation.  We have dealt with many of these cases and can be an invaluable resource for information and more importantly assistance.