Premises Liability Defenses
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What is Premises Liability?
Premises liability is a type of legal theory which holds the possessor of land responsible for some injuries suffered by visitors who are present on their premises. A common example of this is business owners who become liable for a slip and fall injury that a customer suffered while shopping at their store. Depending on the circumstances, the owner or controller of the premises may be legally liable for such injuries.
Premises liability claims are normally based on negligence theories. In order to hold the premises owner liable, it needs to be shown that they were negligent. Proof of negligence involves a showing that:
- The owner of the premises owed a duty of care to the visitor;
- The owner of the premises breached their duty of care;
- The breach of duty caused the visitor’s injury;
- The visitor’s injuries and losses can be calculated with reasonable certainty
Thus, premises liability claims are usually based on unintentional conduct (i.e., negligence) by the owner of the premises rather than intentionally caused injuries.
What are Some Premises Liability Defenses?
An owner or controller of land may have different defenses available to them depending on the circumstances. The most obvious way for an owner to avoid premises liability is to prove that they weren’t negligent. This means that one or more of the elements of proof listed above aren’t met. For example, if the owner of the premises never breached their duty of care, they can’t be held liable for injuries suffered by visitors.
Some commonly raised premises liability defenses include:
- Assumption of Risk: If the plaintiff was aware of a risk of harm, yet disregarded such risks, they may have “assumed the risk” of injury. An example of this is where the visitor didn’t follow warning signs clearly posted by the owner
- Contributory Negligence: If the plaintiff acted in a way that contributed to their own injury, it may prevent them from obtaining a damages award
- Comparative Negligence: If the plaintiff was partially negligent, their damages award may be reduced
Note that the application of a contributory or comparative negligence defense will depend on the jurisdiction. Some jurisdictions only apply contributory negligence theories, while others may enforce a combination of contributory and comparative negligence defenses.
Does the Type of Visitor Matter in Terms of Liability?
Yes- the premises owner may owe a different duty of care depending on their relation to one each visitor. Generally, there are three different classes of “visitors” for premises liability purposes:
- Invitees: These are persons that the premises owner has specifically invited to their property for commercial or business purposes (i.e., customers and patrons). The owner of the premises has the duty to warn invitees of risks if:
- The risk of harm is unreasonable, AND
- The owner knows or should know of the dangerous condition
- Licensees: These are persons who lawfully enter or remain on the premises for any purpose other than commercial or business interaction (i.e., social guests). The owner of the premises has a duty to warn licensees of risks if:
- The owner knew or should have known of the dangerous condition
- The licensee didn’t know or didn’t have reason to know of the dangerous condition (i.e., the danger is hidden or concealed)
- Trespassers: These are persons who enter or remain on the premises without the owner’s permission. Generally, the owner has no duty to warn trespassers of any dangerous conditions on the property, especially where they aren’t aware of the trespasser’s presence. In some jurisdictions, the premises owner has a duty to exercise reasonable care if they are aware of the trespasser’s presence
Thus, property owners owe the highest duty of care to invitees, a lesser degree of care to licensees, and the lowest degree of care towards trespassers. Therefore, the visitor’s status can greatly affect the liability of the land owner.
Do I Need a Lawyer for Assistance With Premises Liability Defenses?
Premises liability claims can present many challenges for property and business owners. If you need help in raising a premises liability defense, you should contact a qualified personal injury lawyer immediately. Your attorney can advise you on the various defenses that may available to you in your jurisdiction. Experienced personal injury lawyers understand the various factors involved in premises liability lawsuits.
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Last Modified: 06-25-2012 02:42 PM PDT
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