Understanding the Duties and Liability of Property Owners and Visitors

Find out when property owners should pay for injuries and when visitor liability can affect the outcome of a personal injury claim.

In most circumstances, a property owner has an obligation (“duty”) to provide a reasonably safe environment for visitors. This duty can extend to employees, management companies, and even to contractors hired to work on the property.

However, property owners aren’t automatically responsible (“liable”) for injuries that occur on their premises. Liability goes both ways.

An injured person can contribute to the circumstances leading to their injuries. In this case, the insurance company would assign liability to the injured visitor and might refuse to pay all or some of their claim.

When you’re injured by unsafe conditions on someone else’s property, you have the right to seek compensation for your damages. But what if the insurance company blames you?

Here’s where we unpack what you need to know about premises liability rules for visitors and property owners.

Common Premises Liability Claims by Visitors

Owners must keep their 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 establish a premises liability case against the property owner.

Some of the most common reasons for premises liability claims and lawsuits are:

Wet floors, broken glass, unrestrained pets, and poorly maintained furniture and equipment are only a small sampling of unsafe conditions that can lead to injuries at just about any type of property.

Whether or not a visitor is liable for their injuries can depend on how they came to be at the property, and how they behaved before the injury occurred.

Types of Invitations and Visitors

Invitations to enter property can be extended by the owner, their agents, or employees. Individuals invited onto the are either 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 extends an offer to enter the property.
  • A spoken invitation is usually by word of mouth and can include telephone calls, radio ads, face to face meetings, teleconferences, and other clear verbal communications.
  • An implied invitation occurs when the property owner previously invited someone onto the property, whether verbally or in writing, and made it clear the invitation is continuing and does not require repeated permission.

Those who enter onto property fall into three main categories:

  • Invitees: Someone who enters onto a property to conduct business at the request of the owner is considered an invitee. Invitees include 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.
  • Licensees: Someone invited onto the property by the owner for social purposes is considered a licensee. Licensees include social visitors who come to chat, relax, or otherwise enjoy themselves, like neighbors, friends, and family.
  • Trespassers: A trespasser enters a property without invitation. A trespasser knows, or should know they were not invited. In most cases, a property owner’s duty of care does not extend to trespassers.

Trespasser Exceptions and Special Circumstances

Property owners can face civil and criminal penalties for intentionally causing harm to trespassers. When the property owner knows or should know that there are frequent trespassers, they may be liable for injuries when:

  • The owner deliberately created or maintained the hazard
  • The hazard could cause serious or fatal injuries
  • The owner expected the trespasser would not see the hazard before it was too late
  • The owner failed to warn the trespasser of the hazard

When Children Trespass

Property owners have a special duty to protect children from harm, even when a child enters the property without an invitation.

Most states have “Attractive Nuisance” laws that require homeowners to take reasonable precautions to keep children away from anything so “attractive” it could entice them onto the property.

The most common example of an “attractive nuisance” is a swimming pool. Other examples include:

  • Trampolines
  • Abandoned cars
  • Heavy machinery
  • Piles of dirt, lumber, bricks or other materials
  • Animals

The rules vary by location. “Attractive nuisance” guidelines for agricultural counties may be different from rules for suburban neighborhoods. Keep in mind that in most jurisdictions, a “child” is anyone under 18 years of age.

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. The owner must make the property safe from probable dangers, not all dangers.

Reasonable efforts might include maintaining proper lighting and adequate security, fixing broken stairs or sidewalks promptly, regular inspection and maintenance of common apartment areas, quickly removing ice and snow, and other reasonable efforts to prevent injury.

Some actions may not be fair expectations of a property owner. For example, it’s unreasonable to expect an owner to:

  • Employ armed guards 24 hours a day, at an office building in a low-crime area
  • Maintain full lighting in a shopping mall parking lot after it closes for the night
  • Repair 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 the injury must have been foreseeable by the property owner. If the danger was known, and the owner did nothing about it, they can be held liable for any resulting injuries.

Case Summary: $20 Million Premises Liability Verdict Against HOA

Carl Thompson was 15 years old when he sat down on a swing set at Lamplight Village residential community. When Thompson sat on the swing, the 42-pound metal crossbar broke, crashing down on his head and crushing his skull.

Carl suffered severe traumatic brain injuries with permanent effects.

Attorneys for Carl and his family filed a premises liability lawsuit against Lamplight Village, blaming the HOA for failing to inspect and maintain the playground equipment.

Carl’s attorneys proved the HOA knew the swing set was dangerous and deliberately chose not to have the swing set professionally inspected and maintained.

The jury agreed, awarding $10 million to Carl for his pain and suffering and another $10 million in punitive damages.

Visitor Liability for Personal Injuries

Property owners should take reasonable precautions to protect visitors from harm. However, visitors have a similar duty to protect themselves from injury.

Insurance adjusters automatically evaluate premises liability claims to determine if the injured person actively contributed to the circumstances of their injury.

Adjusters also look for signs that the injured person failed to mitigate their damages, meaning they made their injury worse. The injured person’s medical records often tell the tale.

An example of failure to mitigate might be someone who broke an arm in a slip and fall accident. If the person failed to show up for doctor-ordered physical therapy appointments but says they still can’t use their arm for work, the adjuster can argue against paying compensation for lost wages or pain and suffering.

Either way, the adjuster can reduce or deny injury compensation based on the victim’s share of liability for their injuries.

The adjuster may assign liability to the injured visitor because of:

  • Intoxication: Video or witness testimony of a bar patron staggering and stumbling from alcohol use before falling can be used to defeat a slip and fall claim
  • Distractions: A person who is so busy texting that they fall into a stairwell because they didn’t watch where they were going may be liable for their injuries
  • Horseplay: Injuries caused by visitors pushing, shoving, or tripping one another won’t be the responsibility of the business owner
  • Risky Behavior: Activities such as riding a skateboard down a set of stairs, running through an indoor facility, or running up an escalator can result in injuries that would be the visitor’s responsibility
  • Restricted Areas: Visitors who are injured after sneaking into “employee only” areas like a restaurant kitchen or supermarket loading dock may have no recourse against the property owner

How Visitor Liability Can Cost You

Your premises liability claim can be flatly denied under pure contributory fault rules in Alabama, Maryland, North Carolina, Virginia, or the District of Columbia if you are as little as one percent to blame for the circumstances of your injuries.

At the other extreme, in states with pure comparative fault rules, you may be eligible for compensation even if you’re 99 percent to blame for your injuries.

Most states use modified comparative negligence rules, meaning you can lose your eligibility for compensation if you are equally to blame (50% rule) or more to blame (51% rule) than the property owner for the circumstances of your injury.

An Attorney Can Save Your Claim

The insurance adjuster could care less about the severity of your injuries. Their paycheck depends on finding ways to deny your claim or pay as little as possible.

You are entitled to seek the full value of your injury claim. Don’t settle for less.

Before accepting the adjuster’s explanation of “visitor liability,” you owe it to yourself to talk to an experienced attorney. A skilled personal injury attorney can maximize injury compensation for you or your injured loved one.

Reputable injury attorneys don’t charge for their initial consultation. There is no obligation, and it costs nothing to find out what a good attorney can do for you and your family.

Charles R. Gueli, Esq. is a personal injury attorney with over 20 years of legal experience. He’s admitted to the NY State Bar, and been named a Super Lawyer for the NY Metro area, an exclusive honor awarded to the top five percent of attorneys. Charles has worked extensively in the areas of auto accidents,... Read More >>