4 Elements of Premises Liability: Who’s Responsible for Injuries?

Find out how to prove you have a valid premises liability claim and how to respond if the property owner tries to shift the blame to you.

If you’re injured by unsafe conditions on someone else’s property, you have the right to seek compensation for your damages. In most cases, you’ll file a claim with the property owner’s insurance company.

However, property owners are not automatically liable for all injuries on their premises. For the insurance claim or personal injury case to succeed, you must prove that all four elements of premises liability apply to your accident.

1. The Property Owner Owed You a Duty of Care

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

To begin a premises liability claim, you must establish that you had a legitimate reason to be on the property. Usually, you visit a store or other location because you were invited.

Invitations to enter a property can be extended by the owner, their agents, or employees. Invited visitors 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:

  1. Invitees: Someone who enters 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 grocery store, or a plumber fixing a homeowner’s hot water heater.
  2. 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.
  3. 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.

2. The Owner Breached Their Duty of Care

Owners must keep their property safe for visitors. That duty is breached when the owner allows dangerous conditions to exist. When a visitor is injured because of those conditions, the visitor can establish a premises liability case against the property owner.

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 care 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.

3. The Breach of Duty Caused Your Injuries

You must prove that the property owner’s negligence created the hazard that was the direct and proximate cause of your injuries.

In other words, if not for the specific hazard, like a wet floor, broken glass, unrestrained dog, or poorly maintained playground equipment, you would not have been hurt.

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.

4. You Have Injury-Related Damages

Without economic damages, you won’t get far with a premises liability claim.

Typical economic damages, also called “special” damages, may include:

  • Medical bills
  • Out-of-pocket medical expenses
  • Car fare or mileage to and from medical appointments
  • Lost wages
  • Personal property replacement or repair costs (glasses, smartwatch, clothing)

You may also pursue compensation for non-economic damages, also known as “general” damages, and better known as pain and suffering.

Common non-economic damages may include:

  • Physical pain from the injuries
  • Emotional distress
  • Anxiety or depression
  • Loss of enjoyment of life

Emotional distress without physical injuries is rarely acceptable as a premises liability claim. Tripping and falling in public is embarrassing. But if you were not physically hurt, your embarrassment won’t count as damages.

Similarly, although you may have solid proof of a dangerous condition, you can’t base a premises liability claim on what might have happened. Letting an aggressive dog run loose is an unreasonable risk of harm, but if you didn’t suffer dog bites, you probably don’t have a case.

Visitor Liability for Causing Their Own Injuries

Property owners must take reasonable precautions to protect visitors from harm. However, visitors have a similar duty to protect themselves from injury. Insurance adjusters evaluate premises liability claims to determine if the injured person actively contributed to causing their injury.

Adjusters also look for signs that the injured person failed to mitigate their damages, meaning they made their injury worse. Medical records often reveal if the injured person delayed treatment or failed to follow the doctor’s instructions.

Either way, the adjuster will try to 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 fault rules, meaning you can lose your eligibility for compensation if you are equally or more to blame than the property owner for the circumstances of your injury.

A Personal Injury Lawyer Can Save Your Claim

The insurance adjuster doesn’t get to have the last word about your share of alleged blame for your injuries.

Before accepting the adjuster’s explanation of “visitor liability,” you owe it to yourself to ask for legal advice from an experienced attorney. A personal injury attorney can dispel the notion that you caused your own injuries, or challenge the percentage of blame attributed to you.

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

Law firms that handle premises liability cases usually offer a free consultation to injury victims. If you decide to hire an attorney, most will agree to work on a contingency basis, meaning the attorney’s fees are only paid if they settle your claim or win your case in court.

There is no obligation, and it costs nothing to find out what a premises liability lawyer can do for you and your family.