Understanding the Rights and Duties of Property Owners and Visitors

Premises liability is a concept defining the legal duty a property owner has toward those who come onto her property. It includes the reciprocal duty visitors have toward the property owner. For legal purposes, the duty for owners can extend to management companies, and even to contractors hired to work on the property.

A property owner’s duty of care is clear. She, her agents, and employees must keep the property safe for visitors. That duty is breached when the owner allows dangerous conditions to exist on the property. When a visitor is injured because of those conditions, they can file a premises liability claim against the property owner.

Types of Invitations

Invitations to enter property can be extended by the owner, her agents, or employees. They are referred to as invitors. Those invited onto the property are referred to as invitees or licensees. There are several types of invitations:

  • A written invitation can be in the form of a letter, card, posted notice, advertisement, email, or other written document which clearly extends an offer to enter the property.
  • A spoken invitation is usually by word of mouth, and can include telephone calls, face to face meetings, teleconferences, and other clear verbal communications.
  • An implied invitation occurs when the property owner previously invited someone onto her property, whether verbally or in writing, and made it clear the invitation is continuing and does not require repeated permission.

Types of Visitors

Those who enter onto property fall into three main categories:

1. Invitees

Someone who enters onto property to conduct business at the request of the owner is considered an invitee. This includes customers, contractors, salespeople, repairmen, and the like. An invitee might be someone shopping at a store, or a plumber fixing a homeowner’s hot water heater.

2. Licensees

Someone invited onto property by the owner for social purposes is considered a licensee. This includes social visitors who come to chat, relax, or otherwise enjoy themselves. This typically includes neighbors, friends and family.

3. Trespassers

A trespasser enters a property without invitation. He is neither an invitee nor licensee. A trespasser knows (or should know) he was not invited. In most cases, a property owner’s duty of care does not extend to trespassers. Thus, they have no legal basis to file a claim if injured on the property.

Exception to the Trespasser Rule

If a property owner purposely causes excessive injuries to a trespasser, the owner may be held civilly and even criminally liable. A land owner cannot willfully or recklessly make his property dangerous, especially if the intent is to cause serious bodily harm or death.

Example: Property Owner Using Excessive Force

Jim had problems with drug users and sellers who regularly trespassed onto his land late at night. They would leave hypodermic needles and other drug paraphernalia, which Jim had to pick up every morning. He reported the crimes and the police arrested some of the offenders, but the criminal activity continued.

Out of frustration, Jim set up a loaded shotgun to go off when a trespasser crossed his property line. The next night, the shotgun fired when a drug dealer entered Jim’s property. The dealer died instantly.

In this case, Jim had a duty of care toward the trespasser and breached that duty. The action of setting up a gun, for the sole purpose of causing serious bodily injury or death, limited the trespass exclusion from Jim’s duty of care.

As a result, the trespasser’s estate likely has a valid premises liability claim against Jim. He can be held civilly liable for the wrongful death of the trespasser, and even criminally liable for manslaughter.

Mitigating Injuries

Mitigation is the act of making a condition less severe. A visitor has a legal duty to mitigate her injuries. She must take reasonable precautions to avoid injury, and if she is injured, she must treat her injuries appropriately. Failure to do so may lessen, or completely remove the property owner’s liability.

Example: Not Mitigating Injuries

Jane was walking down the isle of a supermarket and didn’t notice someone had spilled soda on the floor. She slipped and fell on the soda, cutting her forearm. She was in a rush, so she finished shopping and went home without reporting the incident. Jane had bandages and antibiotic salve at home, but she chose not to use them.

The next day, the cut seemed slightly infected, but Jane ignored it. A week later, the infection developed into a life-threatening bacterial disease. Jane spent a week in the hospital, and later sued the owner of the supermarket.

Jane could have treated the cut at home the first day. If she had, it probably would have healed normally, without becoming infected. She should have mitigated her damages by treating the injury. Because she didn’t, she’d probably lose her case.

Example: Ignoring Known Risk

During sidewalk repaving, the management company of an apartment complex set up temporary walkways for the tenants. They posted clear signs saying:

Do Not Enter
Use Alternate Walkway

One day, a tenant named Bill noticed that the sign by his walkway was gone. He knew the work was recent and suspected the cement might still be wet. He stepped onto the walkway anyway. His foot quickly got stuck, causing him to fall and break his wrist. He then sued the apartment owner and management company for his damages.

Two questions would arise in this case:

  1. Did the property owner breach his duty by not maintaining the warning sign?
  2. Should Bill have known the cement was still wet and dangerous?

A premises liability claim like this might result in shared liability between Bill and the property owner. They both appear to bear some responsibility for the incident.

Reasonable Efforts and Foreseeable Harm

A property owner’s duty of care to protect visitors is not absolute. The owner’s responsibility is limited to making reasonable efforts to avoid foreseeable harm. This means the owner has to make the property safe from probable dangers, not all dangers.

This might include maintaining proper lighting and adequate security, fixing broken stairs or sidewalks in a timely manner, quickly removing ice and snow, and other reasonable efforts to prevent injury.

Some actions may not be fair expectations of a property owner, such as:

  • Employing armed guards 24 hours a day, at an office building in a low-crime area.
  • Maintaining full lighting in a shopping mall parking lot, after it closes for the night.
  • Repairing an apartment staircase, immediately after it was broken by a tenant, when the owner had no notice of the danger.

To win a premises liability claim, the cause of injury must have been foreseeable by the property owner. If the danger was known, and the owner did nothing about it, he can be held liable for any resulting injuries.

Example: Foreseeable Weather Danger

The weather service issued a winter storm warning. Mark, the owner of a bakery, took no action to remove ice and snow from his property. As conditions worsened, the walkway in front of Mark’s bakery became slippery. Soon after, a customer fell and was injured.

In this case, the forecast clearly stated there would be ice and snow, so Mark couldn’t claim lack of knowledge. It was reasonable to expect him to clear the walk from the dangerous ice and snow. Despite the foreseeable danger, Mark did nothing. Therefore, he is liable for the customer’s injuries.

Example: Ignoring Dangerous Property

Rain and wear created a pothole in the parking lot of an apartment complex. The area around the hole continued to erode over time. Visitors and tenants repeatedly notified the property manager of the dangerous pothole, but he did nothing.

One day, a tenant named Lucy tripped and fell in the pothole, breaking her arm. She successfully sued the property owner and management company for her damages.

In this case, the apartment owner and manager ignored the foreseeable risk of someone tripping in the pothole and getting injured, therefore they were found 100 percent liable for Lucy’s injuries.

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