Establishing Property Owner Liability in Personal Injury Claims

Here’s what you need to know about establishing property owner liability for a successful insurance claim. Get the injury compensation you deserve.

Thousands of premises liability claims are filed each year in the United States.

Roughly one in five injury cases that end up in court are filed by individuals injured on someone else’s property.¹

Premises liability is a legal phrase used to describe the duty a property owner has to provide a safe environment for visitors.

Whether you suffered a slip and fall, food poisoning, or some other kind of injury, if you’re hurt because of a business or property owner’s neglect, you deserve compensation.

The burden of proof will be on you to convince the insurance company that the property owner is responsible for causing your injuries.

Here’s where we unpack what you need to know to prove a property owner’s liability and win your personal injury claim.

Who’s Who in Premises Liability Claims

Before filing your injury claim, you’ll need to confirm the person or entity (like a corporation) who is liable for your injuries. We usually think the property owner is liable, but that’s not always the case.

How you proceed with your claim might also depend on your reason for being at the property when you were injured.

Property Owner or Property Occupier?

Tenants frequently occupy residential and business properties. The party legally responsible for your injuries typically comes down to who “controls” the area where you got hurt.

For example, the owner of a shopping center might have rental units occupied by a grocery store, a fitness center, a beauty shop, and a department store.

Who’s liable depends on the circumstances. For example:

  • The property owner could oversee the common areas and would be liable for slip and fall accidents on ice or snow on uncleared parking lots and sidewalks.
  • The supermarket owner would be liable for customer falls on spilled juice in the grocery aisle.
  • The beauty shop owner could be held responsible for chemical burns from improperly mixed hair color.
  • The fitness center would be responsible for injuries caused by poorly maintained gym equipment.
  • The department store company may be responsible for injuries caused by falling merchandise.

Property owner liability and occupant liability also apply to residential properties. Whether the landlord or the tenant is responsible will depend on where and how you were hurt:

  • If you are injured because of a broken staircase in the common area of an apartment building, the landlord is probably responsible.
  • On the other hand, if an apartment resident is walking their dog in a common area, and the dog attacks a child, the dog-owner would be primarily liable for the child’s injuries.

There are plenty of cases where more than one party could be liable for your injuries, although each party will point the finger of blame at the other.

Don’t overlook potential compensation. Talk to a personal injury attorney to help identify all the parties who should pay for your injuries.

Categories of Property Visitors

Premises liability rules in most states have special terms for visitors to a business or residential property. Generally, the terms describe your reason for being at that location.

  • You are an invitee when you visit businesses like supermarkets, malls, restaurants, or any other business open to the public; you’re there by implied invitation.
  • You are also an invitee if you are on private property for business reasons, like a plumber or delivery person.
  • You are a licensee if you visit a non-public property with permission of the owner, like a guest in someone’s home.
  • A trespasser is not invited onto the property. In most cases, a trespasser won’t be able to file a claim for injuries suffered on someone else’s property.

What Makes a Property Owner Liable?

You must prove four elements of negligence to establish liability of the property owner (or occupier) for your injuries and related losses:

  1. Duty of Care: The property owner had a duty of care to avoid causing harm to others.
  2. Breach of Duty: The property owner breached their duty by doing something wrong or failing to take reasonable action to remedy a dangerous condition.
  3. Cause: The property owner’s breach of duty is the proximate cause of your injuries. You wouldn’t have been injured but for the negligence of the property owner.
  4. Damages: You have verifiable injuries, supported by medical bills and records, and other forms of evidence.

Proving a property or business owner failed to take reasonable action to remedy a dangerous condition takes more than just saying, “They should have fixed that.”  You or your attorney must be able to show:

  • Foreseeability: The property owner knew or should have known there was a risk of harm to others. A convenience store owner should expect snowy sidewalks after a winter storm.
  • Reasonableness: The property owner should take reasonable action to remove or correct a dangerous condition. It’s reasonable to expect the convenience store clerk to shovel snow off the walks before the store opens in the morning. It’s not reasonable to expect the sidewalk to be shoveled at midnight during a snowstorm.

Example: Homeowner Liability for Worker Injury

Sharon had provided weekly house cleaning services to the Martin home for more than two years. Sharon cleaned every Tuesday, while the Martin’s were at work, entering the home with the housekey they gave her for that purpose.

One Tuesday morning, Sharon entered the Martin home and went straight to work. As she was vacuuming her way through the house, she opened a bedroom door and was viciously attacked by a large German Shepherd.

Sharon suffered bite injuries to her face, arms, and legs, and was severely traumatized.

The Martin’s were dog-sitting for their grown daughter, who was on vacation. They knew the dog was nervous around strangers but failed to warn Sharon that there would be a large dog in the house.

The Martin’s knew, or should have known that the dog was a hazard to invitees in their home. They failed to warn Sharon of the danger, and to take reasonable steps to keep the dog separated from invitees in their home.

Sharon had every reason to be in the home vacuuming. She did nothing to contribute to her injuries.

As property owners, the Martins are fully liable for the house worker’s injuries.

Just about any hazard that causes injuries can be grounds for a liability claim if the business or property owner could have prevented it. For example:

  • A casino owner should regularly inspect furnishings used by the public. If a slot machine chair collapses and injures a patron, the casino may be liable.
  • Fast food restaurants have an obligation to train their workers on safe food preparation. If customers are sickened by undercooked meat, the owners may be liable for food poisoning.
  • The postal service or other agency may be liable for slip and falls or other preventable injuries on government property.

Fighting the Property Owner’s Insurance Company

Most premises liability claims start with the property or business owner’s insurance company. Big companies and corporate businesses carry millions of dollars in liability insurance, but they won’t write you a check without a fight.

Case Summary: Jury Awards $4.6 Million for Parking Lot Injury  

A South Carolina jury entered a significant verdict against Target by awarding $4.6 Million to Carla Denise Garrison after she was stuck with a hypodermic needle her daughter found in the store’s parking lot.

Garrison’s eight-year-old daughter had picked up the hypodermic needle as they were getting out of their car. Ms. Garrison immediately swatted the needle out of her daughter’s hand, resulting in the needle getting stuck in the mother’s palm.

Garrison became ill from the medications she had to take to prevent HIV. Her husband had to take off work to care for the family.

Attorneys for Ms. Garrison tried to negotiate a settlement with Target to cover the family’s medical bills and lost wages. When Target countered with a low-ball offer of $750, the case went to trial.

Target argued there was “no proof Target put the needle in the parking lot” or had knowledge the needle was there.

The jury determined that the property owner was liable for conditions in their parking lot and entered a verdict in favor of Carla Garrison.

The $4.6 Million award included punitive damages that Ms. Garrison’s attorney described as the jury “sending a clear message” to Target for their hard stance against his client.

Blaming the Victim

Insurance adjusters for corporate clients are well-trained and very aggressive. A favorite defense tactic is to shift blame to the victim.

The adjuster can use pure contributory negligence rules to flatly deny your claim in Alabama, Maryland, North Carolina, Virginia, or the District of Columbia if you share any amount of responsibility for your injuries.

They won’t tell you that in states like California and New York with pure comparative fault rules, you can pursue compensation even if you’re 99 percent to blame for your injuries.

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

In modified comparative fault states, if your claim survives, your eligible compensation is reduced in proportion to your share of the blame. For example, if your claim value is $10,000, but the adjuster says you’re 25% to blame, they won’t offer more than $7,500 to settle your claim.

Another common insurance company tactic is to reduce compensation by arguing that the victim was suffering from a preexisting injury or medical condition.

Successful Insurance Claims Need Good Evidence

You’ll be better prepared for a faceoff with the insurance company if you have evidence pointing to the property owner’s liability.

Gathering strong evidence starts as soon as you’re injured. Never leave the scene without letting someone know how you were hurt. If you wait a day or two to see how you feel, the insurance company has a good reason to doubt you were injured on the property they insure.

  • Report the Accident: Tell the property owner or business manager you were injured because of a dangerous condition on the premises. Ask someone to call for medical help. If you don’t get emergency treatment at the scene, see your doctor as soon as possible. Tell every medical provider you see exactly when, where, and how you were injured.
  • Incident Report: The property owner or manager should complete an incident report. Ask for a copy for your records. If they refuse, your attorney will be able to subpoena a copy of the report for litigation.
  • Insurance Information: Ask for the property owner’s insurance company’s name and contact information. Your claim will be filed with a homeowner’s insurance company or a business liability insurer.
  • Witness Information: Anyone who saw how you were injured is a potential witness, including employees at a business location. Get the name and contact information of anyone who saw your accident or knew of the hazardous condition before you were hurt.
  • Photographic Evidence: Take photographs or video of the accident scene, especially the hazardous condition that led to your injury. If you were injured at a business, ask for copies of the surveillance camera footage for the day. Camera footage is vital evidence that your attorney may have to pursue through litigation discovery.
  • Medical Records: Request copies of all medical records and bills pertaining to your accident from the day of injury through recovery. Also collect receipts for any out-of-pocket medical expenses.
  • Lost Wages: Ask your employer for an official statement of your lost wages, including any personal leave or vacation time you used during your recovery.

An Attorney Can Help You Win

Property owner liability cases can be complicated, especially when you’ve suffered severe or potentially permanent injuries. You just can’t trust the insurance adjuster to give you a fair settlement.

There’s too much at stake to go it alone. Most injury attorneys don’t charge for their initial consultation.

There’s no obligation, and it costs nothing to find out what an experienced personal injury attorney can do for you.

Property Owner Liability Questions & Answers

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 >>