Legally Defining Premises Liability

The legal obligations that a property owner owes to other persons within the boundaries of the owner’s property are protected under premises liability.

These obligations must meet the duty of care – the exceptions of care requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others – in this case, providing reasonably safe premises for individuals on their property.

What Are My Premises?

You should familiarize yourself with what “property” may fall under your premises.

You could be held liable for accidents that occur on these premises.

The more obvious places include your:

• Home
• Vehicles
• Land

Many people do not realize that these do not define the full spectrum of your “properties.”

Other examples of premises include:

• Business owners can be held accountable for their business properties
• Contractors are accountable for their worksites
• Landlords can be held accountable for their tenant’s living space

If you own the property where an injury occurred, then you can be held liable for that injury, regardless if you were on the scene when the accident occurred, and even if you have never stepped foot on the property prior.

This is why it is important to familiarize yourself with the whole scope of your premises.

Why are Property Owners Liable for their Premises?

Premises liability is defined by the owner’s “Duty of Care”:

• An obligation that a property owner must meet in order to ensure the safety of his/her visitors.

Property owners are held liable for accidents and injuries on their property to ensure that they meet the duty of care and provide an adequately safe property for their visitors.

Property owners are not always liable for injuries on their property.

In order to better understand when and why property owners are liable for accidents on their premises, you must first understand the different types of visitors and invitations.

3 Types of Premises Visitors

Invitations to the property are granted to visitors from property owners, family, managers, or staff.

There are three (3) common types of visitors:

1. Invitees

Any individual invited onto a property in order to conduct business with the property owner, manager, and/or staff.

Common examples include:

• Contractors
• Business associates
• Groundskeepers

2. Licenses

Any individual invited onto a property for social purposes.

Common examples include:

• Family
• Friends
• Neighbors

3. Trespassers

Any individual who enters the domain of private property without a prior invitation from the property owner, manager, and/or staff.

• In general, trespassers do not have a claim against property owners for any injuries that occur while they are trespassing on the property.

However, there are special circumstances that may hold the property owner liable for the injury:

• If the injury occurred because the property has been defined as excessively dangerous or because the property owner takes action with the intent to purposefully harm trespassers, then the owner may be held liable.
• The definition of excessive danger and purposeful harm differ state-by-state and even by local government regulations.
• If you have questions regarding trespassers and premises liability, contact a premises liability lawyer.

3 Types of Consent to Enter Premises

Visitors must be given consent to enter the property, otherwise, they are considered trespassers.

Visitors can be invited onto a property through one or more of the following three (3) types of invitations:

1. Written

Any documented form of invitation consenting to a visitor’s presence on the property.

Common examples include:

• Letters
• Emails
• Mail
• Others

2. Spoken

Word-of-mouth consent granted in a conversation between the property owner, manager, or staff and the visitor.

Common examples include:

• Phone calls
• Conversations
• Others

3. Implied

Consent that is implied due to a longstanding relationship, past invitations, or certain circumstances.

This type of invitation is more subjective and harder to prove than others.

Common examples include:

• Family members visiting each other’s homes
• Patients visiting their physicians
• Neighbors walking on other neighbor’s property

Once an invitation has been accepted, both the property owner and the visitor must meet expectations to ensure the visitor’s safety, otherwise a premises liability lawyer may be necessary to file a claim.

How Can a Property Owner Minimize Liability?

Property owners (including managers and staff) must meet two (2) expectations to ensure the visitor’s safety:

1. Make reasonable efforts to protect visitors from likely dangers

We say “likely” and not “all” danger because some incidents are anomalies.

2. Consider foreseeable harms

Again, not all incidents are predictable.

But the property owner is expected to consider any-and-all plausible future incidents and do everything in their power to avoid these incidents from occurring.

An example would be:

Staying up to code with requirements set by law.

What are the expectations for property owners?

Expectations for property owners must be fair and attainable.

Property owners cannot be held liable for unfair expectations.

Examples of unfair expectations

• A business owner hosting a work party at his/her place of business should not be expected to hire security to ensure the safety of workers’ vehicles parked in the parking lot.
• A contractor should not be expected to have on-site medical personnel after hours of operation just in case a trespasser is injured on the work site.

If a property owner does not make reasonable efforts to protect visitors from likely danger or there is evidence that the property owner did not consider how to avoid injury to visitors, the property owner can be held liable for a visitor’s injury.

Can Both Parties be at Fault in Premises Liability Lawsuit?

In some cases, both the property owner and the visitor may be found to hold partial responsibility for a visitor’s injury.

Liability is then shared between both the owner and the visitor.

Both parties must work to arbitrate liability to determine how damages will be shared:

Example of shared liability

• The visitor from the previous example did not see the pothole, tripped over it and sprained their ankle.
  • The property owner was aware of the pothole and had planned on addressing it but had not gotten around to it yet.
  • The visitor knew that the property owner was aware of the pothole so they decided to continue to walk on the ankle without seeking medical attention first.
  • The sprain got much worse to the point that the injured visitor had to see a doctor.
  • The doctor determined that the original injury was a grade 1 sprain but continued walking resulted in a grade 3 sprain.
• The property owner is liable for the grade 1 sprain because it was the result of their negligence.
  • However, the visitor is liable for all other damages because they did not mitigate the injury.

Shared liability is complex and oftentimes confusing.

Consult with a premises liability lawyer who can offer their expertise in helping allocate liability to each party involved.

Filing a Premises Liability Lawsuit

A premises liability lawsuit is handled like any other personal injury lawsuit, so you should familiarize yourself with the steps in a civil lawsuit before filing your premises liability case.

You should consider hiring a personal injury attorney who is experienced in premises liability litigation.

Do not wait to begin this process – your state’s statute of limitations laws limit the amount of time you have to file a premises liability lawsuit after the incident has occurred.

After you have hired a premises liability lawyer, your attorney will need to determine which party or parties are liable for your injuries.

You will demand payment from the liable party or parties for all the damages that you inflicted as a result of the incident, both compensatory damages and punitive damages.

Your premises liability lawyer will help you assess the total damages that you incurred.

The total of your damages is your compensation.

Receiving compensation will occur when you and the defendant settle out of court, or when the court orders the defendant to pay damages.

You will need to begin gathering evidence as soon as possible to support your claim for damages.

Common premises liability lawsuit evidence includes:

• Photos of the scene
• Reports from authority
• Hospital and medical records
• Personal accounts of the incident
• Witness accounts of the incident
• Photos of injuries

Hiring a Premises Liability Lawyer

If you have suffered an injury as the result of a property owner’s negligent actions, you may be entitled to compensation for the damages that you incurred.

Contact a premises liability attorney from TorHoerman Law to find out whether you qualify to participate in a premises liability lawsuit.

TorHoerman Law offers free no-obligation case consultations for all potential clients.

At TorHoerman Law, we work on a contingency fee basis, so we don’t charge our clients a penny until they have received payment for their injuries.

So, we are dedicated to working hard for our clients and making sure they get the most for their premises liability injuries.