When a customer slips and falls on water or some other substance in a store aisle, or when someone trips on an uneven walkway leading to a neighbor's front door, the legal theory under which the injured person might hold the property owner or occupier legally responsible is "premises liability."
Besides the two scenarios touched on above, examples of premises liability personal injury cases include those involving:
- unsafe workplaces
- dog bites and animal attacks
- inadequate building security resulting in a crime
- balcony collapses
- building code violations, and
- swimming pool accidents.
Elements of Premises Liability
Premises liability is based on the same principles of negligence, the fault concept that is at the heart of most injury-related cases.
To prevail in a premises liability case, the plaintiff (the injured person) typically must prove:
- that the defendant (the person or business being sued) owned, operated, or controlled the property where the injury occurred
- that the defendant was negligent in the use or maintenance of the property, and
- that the defendant's negligence was a substantial factor in causing the injury.
Let’s take a closer look at each of these elements.
1. The defendant owned, operated, or controlled the property where the injury occurred
Premises liability doesn't apply only to property owners. Any person who leases property or operates a business on property may be liable for injuries that happen there.
Control is the most important element in determining fault for an accident on unsafe property. For instance, when a property owner leases property to a store operator, the store operator is more likely than the property owner to be held liable for injuries sustained due to a hazardous condition in the store—such as a wet or slippery floor or a missing handrail. But if a property owner knows of a hazardous condition on the property, such as outdated wiring, and doesn't inform the store operator of its existence, the property owner may be held liable for any injuries the hazard causes to customers or staff.
2. The defendant was negligent in the use or maintenance of the property
Following negligence principles, the plaintiff in a premises liability case will have to prove the defendant owed a duty of care to the plaintiff and violated (breached) that duty. Historically, the duty of care in premises liability cases was dependent on the status of the visitor to the property:
- If the visitor was an "invitee," that is a friend, a relative, a neighbor, or another person who was granted permission to enter the property, the property owner had a duty to use reasonable care to keep the property safe for the invitee.
- If the visitor was a "licensee," typically a salesperson, who was granted permission to enter the property typically for business purposes, the property owner had a duty to warn of dangerous conditions if the owner knew of the condition and the licensee was not likely to discover it.
- If the visitor was a "trespasser," the property owner usually owed no duty of care unless the trespasser was a child. A property owner is obliged to use reasonable care to avoid the foreseeable risk of harm to children caused by artificial conditions on the property. (Learn more about homeowner liability for trespasser injuries.)
Some states still follow this approach. Others have adopted a general duty to use reasonable care to discover, repair, and warn of unsafe conditions on the property. The question becomes: What is reasonable? When insurance adjusters, judges, and juries have to answer that question they typically consider the following factors:
- the foreseeability of harm to the injured plaintiff
- the likelihood of a person being harmed as a result of the unsafe condition
- the seriousness of the potential injury
- the extent of the property owner’s control over the unsafe condition
- the interest of preventing future harm
- the burden on the at-fault party if a duty is imposed, and
- the availability, cost, and prevalence of insurance against the risk of the foreseeability of the injury.
Once a duty is established, the injured party must show that the at-fault party failed to use reasonable care to discover, repair, or warn of the unsafe condition.
3. The defendant's negligence was a substantial factor in causing the injury
Whether the property owner’s negligence caused the injury is not always a simple issue. What if the unsafe condition should have been obvious to the injured person? A milk spill on a white linoleum floor might not be easy to spot. But what about spilled tomato ketchup on the same white linoleum floor, with orange cones around the spill? In other words, where unsafe conditions are obvious, the property owner might not be liable.
Also, in some situations, the injured person may be held partially responsible for the accident. In most states, when a plaintiff bears some fault, any compensation is reduced by an amount equal to the plaintiff's share of liability. Learn more about comparative negligence in personal injury cases.
Talk to a Lawyer
If you're involved in a premises liability dispute, talk to a lawyer. A lawyer can answer your questions and help you figure out the best next steps.
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