Who Is Responsible in Premises Liability Cases?
Understand how liability is determined when someone is injured on a property
on September 6, 2022
Updated on January 26, 2023
Suppose you or a loved one has suffered an injury on another person’s property due to unsafe conditions. In that case, it’s possible to bring a premises liability lawsuit.
Premises liability is the legal concept 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.
Premise 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.
Premises liability laws vary by state, and what you will have to prove depends on your state’s laws.
States generally use one of two methods for determining who is responsible for injuries:
- Look at the “status” of the visitor and what this status says about the property owner’s responsibility to the visitor. For example, was the visitor a trespasser or an invited guest?
- Look at the property conditions and what both the owner and visitor did. Did the visitor contribute to their injuries by not being careful? Had the owner taken reasonable steps to eliminate dangerous conditions?
This article will give an overview of what generally must be proven in a premises liability case. If you have been injured, it’s a good idea to speak with a premises liability lawyer in your area to understand how your state handles this area of law.
Types of Premises Liability Accidents
There are as many types of premises liability cases as there are types of accidents that can happen on a property.
Some of the most common types of accidents resulting in premises liability cases include:
- A customer at a department or grocery store slips and falls on a slick or wet floor
- Someone is injured on a public sidewalk—for example, due to icy conditions or inadequate maintenance
- Defective equipment or machinery—for example, broken elevators, escalators, or moving walkways
- Someone is injured while riding a rollercoaster at an amusement park
- Swimming pools accidents (often involving children) due to improperly maintained premises or lack of lifeguard supervision
- Dog bites occurring in someone’s yard or home
Fall accidents and other premises liability injuries can range from minor scratches or bruises to serious injuries, including:
- Broken bones
- Concussions and brain injuries
Depending on how severe the injuries, expenses resulting from an accident can be significant. An injured person might face medical bills as well as lost wages due to missing work.
Who is Liable for Damages?
As noted above, personal injury laws vary from state to state. The two general approaches to premises liability are to:
- Look at the status of the visitor
- Consider the condition of the property and the actions of the owner and visitor
Let’s look at these two approaches in more detail.
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. There are three categories of visitors:
- 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 responsible for reasonably ensuring the premises are safe for invitees.
- Licensees. Licensees are individuals the property owner has given express or implied permission to come onto the premises. Licensees include individuals who perform maintenance on the property (like plumbers or construction workers) as well as social guests who are welcomed for social events like parties or meals. It’s generally the case that property owners must repair any dangerous conditions on the property or warn the licensee about the dangerous conditions. For example, if a broken stair could cause someone to trip, the owner should fix that or let their visitors know.
- 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. Property owners can’t intentionally harm trespassers. The law for child trespassers is also different and will be discussed below.
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 that must be proven:
- 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 licenses on the older model. The duty generally does not extend to trespassers.
- Breach. A breach occurs when the owner fails to exercise their duty of care. This can take different forms. Perhaps the owner should have known about the hazardous condition but didn’t. For example, if they had inspected the property, they would have known about the hazards on the property. In this case, the property owner can’t claim ignorance of the dangers since they should have known. Or perhaps the owner knew about the dangerous condition and simply failed to do anything. Finally, an 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. This means that you were actually injured or harmed by the owner’s negligence. Damages are the compensation you are seeking for injuries. This can include medical expenses as well as lost wages or earning potential due to the injuries.
“In any negligence case,” says Epstein, “and especially in premises liability cases, there will be a claim against the person who’s injured for their negligence.” That is, the person being sued will claim that the plaintiff is 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 if a Child is Trespassing?
Children who come onto your property without your permission are technically trespassers.
However, suppose a property owner knows or suspects that children are coming onto their property uninvited. In certain instances, 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,” says 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,” he says.
This special duty towards children is sometimes called the “attractive nuisance rule.”
“[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 to them by warning them. Owners may be held liable for the children’s injuries if unwarned.
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 lawsuit against the property owner.
Learn more about wrongful death lawsuits.
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,” says Epstein.
“When someone is injured in a premises liability case… there are different ‘buckets’ of damages,” he says.
“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 be 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. This includes:
- Pain and suffering
- Disability and impairment
- Loss of enjoyment in life—for example, “I broke my ankle, and I’m a 30-year-old guy, and my life’s passion was to run, and now I can’t run”
- Life expectancy, that is, the permanency of impairment, disability, or pain and suffering
Questions for a Premises Liability Attorney
If you are considering a premises liability lawsuit, consider speaking with an experienced personal injury lawyer about your case.
Many premises liability attorneys provide free consultations to learn about your case. These consultations let you get legal advice and decide if the attorney or law firm meets your needs.
To get the most out of a consultation, ask informed questions such as:
- What are your attorney’s fees?
- How is premises liability determined under my state’s laws?
- What is the statute of limitations for filing a lawsuit?
- How likely is a settlement before going to trial?
Once you have met with a premises liability lawyer and gotten your questions answered, you can begin an attorney-client relationship.
Look for a premises liability attorney in the Super Lawyers directory.