Who Is Responsible in Premises Liability Claims?

If you or a loved one has suffered an injury on another person’s property due to unsafe conditions, you may be able to bring a premises liability lawsuit.

Premises liability is the legal idea that property owners, property managers, business owners, or residents should take reasonable steps to ensure a safe environment on their property so visitors aren’t injured.

If your accident is the result of a property owner’s negligence, you can get compensation for medical expenses, lost wages, and pain and suffering. Contact a premises liability lawyer for legal advice.

What Is Premises Liability?

Premises liability claims “arise when a person is injured on someone else’s property as a result of the property owner’s negligence,” says New Jersey personal injury lawyer Michael J. Epstein.

There are as many types of premises liability claims as there are types of accidents that can happen on a property. Common situations include:

• A customer at a department or grocery store slips and falls on a slick or wet floor
• A pedestrian trips and falls on a walkway due to icy conditions or inadequate maintenance
• A person was assaulted in a parking lot with inadequate security known to have incidents of crime
• A person is inured by defective equipment or machinery such as broken elevators, escalators, or moving walkways
• An amusement park visitor gets hurt while riding a rollercoaster
• A child suffers a swimming pool accidents due to improperly maintained facilities or lack of lifeguard supervision
• A walker suffers injuries from a dog bite because the owner didn’t properly secure the dog

Fall accidents and other premises liability injuries can range from minor scratches or bruises to serious injuries, including sprains, broken bones, concussions, and brain injuries. Depending on how severe the injuries are, expenses resulting from an accident can be significant. An injured person might face medical bills as well as lost wages due to missing work.

Two Methods for Determining Fault in Premises Liability Cases

Premises liability laws vary by state, and what you will have to prove depends on your state’s laws. That said, courts generally use one of two methods to determine who is responsible for injuries:

1. Look at the legal status of the visitor. Are they an invitee, a licensee, or a trespasser?
2. Look at the property conditions and the owner and visitor’s actions.

Premises Liability Based on the Visitor’s Legal Status

In some states, courts determine liability for premises injuries based on the status of the visitor at the time of the incident. It doesn’t matter if the unsafe condition is indoors or outdoors — what matters is why the injured person was there, says Liah Catanese, a plaintiff’s personal injury lawyer at Warrior Law in Fort Lauderdale, Florida.

If someone is visiting your home as a social guest, you need to warn them of anything unsafe. If they are there for a business reason — for example, a real estate agent showing your home — you must not only warn them but also inspect the property for dangers of which you might be unaware.

On the other hand, if someone is trespassing, you don’t have a duty to take care of a dangerous condition or to give any warning. Your only duty is to prevent an intentional injury, like rigging up a device to intentionally harm a trespasser.

1. Invitees

Invitees are individuals who are “invited” onto premises for the property owner’s benefit.

Typically, invitees are customers who come into a store to shop or enter a building open to the public (like a mall or outlet). Property owners are assumed to be responsible for reasonably ensuring the premises are safe for invitees.

2. Licensees

Licensees are individuals to whom the property owner has given express or implied permission to come onto the premises. This category includes people who perform maintenance on the property (like plumbers), as well as social guests who come for social events like parties.

Generally, property owners must repair any dangerous conditions on the property or warn the licensee about those conditions. For example, if a broken stair could cause someone to trip, the owner should fix that or let their visitors know.

3. Trespassers

Trespassers are individuals who illegally enter someone’s private property without the property owner’s permission.

It used to be that property owners had no responsibility towards trespassers.

“Trespassers don’t have a right to be on the land, so… they generally have no right to recover for injuries since the [property owner] has no duty towards them,” says Epstein. However, there are exceptions. For example, property owners can’t intentionally harm trespassers. The law for child trespassers is also different.

Premises Liability Based on Negligence

Most states have moved away from the exclusive focus on the visitor’s status for determining liability. Instead, states use a general “reasonable person standard” for deciding premises liability, regardless of the visitor’s status.

In other words, most states now use a simple negligence test for premises liability. There are four elements of negligence claims:

Duty of Care

Under the negligence approach, property owners have a duty to either fix dangerous conditions on the property or warn visitors about those conditions. This duty of reasonable care extends to individuals classified as invitees and licensees on the older model. The duty generally does not extend to trespassers.

Jeannete Lewis, a plaintiff’s personal injury lawyer at Lewis Legal Group in Davie, Florida, recalls the case of a young guest at a pool party: To lift herself out of the water, she grabbed a brick just above her. It was loose and fell, lacerating her face. The case settled, but the homeowner is at fault in such situations.

“A homeowner has an absolute duty to fix an unsafe condition about which they know or should know, or — if they don’t fix it — to warn others about it,” Lewis says.

It’s a duty that you can’t delegate away. So, even if your plumber did a poor job fixing a leak and a visitor has a slip-and-fall accident two days later, you are still liable, says plaintiff’s personal injury lawyer Matthew K. Schwencke at Searcy Denney Scarola Barnhart & Shipley in West Palm Beach.

“It really is a good law because it ensures people who own homes do what’s reasonable to ensure it’s safe,” he says.

Breach

A breach involves the owner’s failure to exercise their duty of care. This can take different forms:

• The owner should have known about the hazardous condition, but failed to inspect it
• The owner did know about the dangerous condition but failed to fix it
• The owner might have actively caused the unsafe condition that resulted in the visitor’s injuries.

Causation

This means that the property owner’s breach of duty is what caused your injuries. Had the owner fixed the problem or warned you about it, you wouldn’t have been injured on the premises.

Damages

You must have actually suffered harm or injury caused by the owner’s negligence. Damages are the compensation you are seeking for injuries. This can include medical expenses, lost wages, or loss of earning potential due to the injuries.

What if the Trespasser Is a Child?

Children who come onto your property without your permission are technically trespassers. However, if a property owner knows or suspects that children are coming onto their property uninvited, they are expected to prevent harm to the children or warn them of hazards on the property. “There’s a difference between adult and child trespassers. Children don’t have the same ability to assess safety,” explains Epstein.

A property owner will be liable for physical harm to a child trespasser “if there’s an artificial condition on the property that the possessor knew or had reason to know was dangerous and that children were likely to trespass on,” Epstein says. This special duty towards children is sometimes called the attractive nuisance rule.

“The number one situation where this is cited is with pools,” says Catanese. “Anything shiny or attractive to children that’s not covered, protected, or fenced in — the owner is going to be responsible for that.”

“[Say] you’re a property owner, and you have this big mound of dirt with glass and other dangerous things in it,” says Epstein. “You leave it there with no fence sealing it off. There are a lot of children in the area, and they play and ride their bikes. They’re going to climb the mound because you didn’t do anything to seal it off. That’s an attractive nuisance to an eight-year-old.”

If the adult property owner suspects children are coming onto the property, it’s the owner’s responsibility to try to prevent harm. Owners are liable for the children’s injuries if unwarned.

What’s the Difference Between Comparative Negligence and Contributory Negligence?

“In any negligence case, and especially in premises liability cases, there will be a counterclaim against the person who’s injured that they were negligent,” says Epstein. That is, the person sued will claim that the plaintiff is actually the one responsible for their injuries.

Depending on the state, this claim against the plaintiff is either known as contributory negligence or comparative negligence.

• In states with contributory negligence, if it’s proven that the plaintiff was partly responsible for their injuries, they may be barred from recovering anything from the defendant.
• In comparative negligence states, courts will reduce damages in proportion to how much the injured party was responsible for their injuries. In the most common type of comparative negligence, the plaintiff must be 50 percent or less at fault to recover.

“Negligence has to add up to 100 percent,” says Epstein. “In New Jersey, for example, if the plaintiff is 50 percent or less at fault, they will have a recovery against the defendant for the remaining 50-plus percent.”

However, if the plaintiff is “more than 50 percent responsible, then under New Jersey law, they recover nothing,” he says. “If the injured person wasn’t making proper observations or looking at where they were going, there will be an assessment of how much [each party was at fault for the injuries].” If the plaintiff is more than 50 percent responsible, they can’t get any damages in the lawsuit.

Other states have slightly different rules regarding comparative negligence, and it’s important to speak with a lawyer about how your state’s laws work.

What Damages Can You Get in a Premises Liability Case?

Damages in a “premises liability case are what is reasonable and fair compensation for the injured party’s harms and losses. When someone is injured in a premises liability case, there are different ‘buckets’ of damages,” says Epstein.

“The first bucket is economic losses. Economic losses can be medical bills that aren’t covered by insurance, or because you don’t have insurance. They can include lost wages in the past, present, or future. They can be miscellaneous out-of-pocket expenses — for example, you can’t drive to physical therapy and have to get an Uber, or you can’t take care of your house and need someone to come in on a weekly basis to clean or get your food,” he says.

“The other bucket is non-economic losses,” says Epstein, including:

• Pain and suffering
• Disability and impairment
• Loss of enjoyment in life
• Life expectancy, that is, the permanency of the impairment, disability, or pain

Wrongful Death

In some cases, a premises injury can result in the injured person’s death. If this happens, the deceased person’s survivors could bring a wrongful death claim against the property owner. Learn more about wrongful death lawsuits.

Find an Experienced Premises Liability Attorney

“Everybody has an obligation to be aware of their surroundings,” Lewis says. “If it’s open and obvious, you should see it and appreciate the danger. So if you’ve experienced going up and down those stairs, it’s not on the homeowner to warn you.”

Todd Michaels, a plaintiff’s personal injury lawyer at The Haggard Law Firm in Coral Gables, recommends not reacting defensively if the worst happens and someone is injured at your home.

“People should be less concerned with litigation and more concerned with doing the right thing,” he says. “Recognize this is the reason why you have insurance, and let the insurance company know you want the person taken care of.”

If you are considering a premises liability claim, speak to an experienced personal injury lawyer. Many attorneys provide free consultations to learn about your case. Personal injury lawyers generally work on a contingency fee basis, meaning there are no upfront legal costs, and you only pay if you win the case. Find a local premises liability attorney in the Super Lawyers directory.