Landowner Liability

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 When Can I Be Sued as a Landowner?

As a possessor of land, a person has the duty to take precautions regarding possible dangerous conditions on their property. Failure to take reasonable, adequate precautions may result in the person incurring liability for any harm and injuries suffered by people who enter the property. Injured parties may sue the possessor for negligence.

A “possessor of land” for purposes of legal analysis may be the landowner. Or, it may be a tenant who leases the property and operates a business on it, e.g. a hotel or resort. Liability has even been extended to agents for the owner or tenant.

If the owner of real property leases it to a tenant, the owner is only liable for injuries at a rental property resulting from accidents in the common areas of the property for which the landlord continues to be responsible. If the tenant is injured in an area over which the tenant has control, then the tenant cannot turn to the landlord.

Liability rests with a landlord when some hazard in an area that causes injury to a person is within the landlord’s duty to fix or repair in a reasonable amount of time. If it can be shown that a landlord had a duty to fix a hazardous condition, knew about the condition, did not fix it and it caused injury to someone, then the landlord could be liable for negligence. This is so even if the property was leased.

In some states, the nature of the duty that a possessor of land owes to people who enter their property depends on the legal status of the person on the property, specifically whether the person is:

This area of the law is commonly referred to as “premises liability” law. For premises liability law to apply to a situation, the following must be present:

  • To be liable, a person must possess the land, referred to as “premises” in legal terminology;
  • The person present on the possessor’s property must be an invitee or, in certain cases, a licensee. Traditionally, trespassers were not extended any protection by premises liability law.
    • However, in 1968, the California Supreme Court abolished the distinction between the categories of people present on property for liability purposes. This opinion led most other states to change their law to align with the law in California.

Now, in most states, a possessor of property can be liable for damages for their negligence, or some other wrongful act, even if the victim is a trespasser. Most states have abandoned the careful distinction of duties owed to people who are present on real property that depends on their exact status as a licensee, invitee or trespasser.

In addition, in recent years, the law of premises liability has developed to include cases in which a person is injured on the premises of another by the wrongful act of a third person, such as a criminal assault perpetrated by someone who is not the possessor of the property. This area of law is referred to as “third party premises liability” law.

In a third-party premises liability case, the injured party may hold a possessor of property directly or vicariously liable even though the possessor did not commit the criminal act that was the direct cause of their injury.

In California, the law of premises liability places a duty of care on people in possession of property. The duty comprises the following obligations:

  • Maintain their property in a condition that is reasonably safe and without obvious hazards;
  • Warn guests, visitors, customers and others present on the property of dangers that may not already be open and obvious;
  • Inspect the property regularly for hazards;
  • Repair any potentially dangerous conditions;
  • Give adequate warning of any known dangerous condition.

A property owner or occupier who is negligent by failing to fulfill their duties as a possessor of property may be liable for any injuries sustained by people who are present on the property. The injured party may be able to file a lawsuit for negligence against the property owner for damages.

What Duties Do I Owe Licensees?

The law views licensees as having a special permission to do something on somebody else’s property. The social guests of a property owner traditionally come within the category of licensees. A common example is allowing a person to walk across their lawn which, if it were not for the license, would constitute a trespass.

The owner of property has the following obligations to their licensees:

  • A duty to warn licensees of concealed dangerous conditions; and
  • A duty to exercise reasonable care in the conduct of operations on their land.

Per traditional premises liability law, the owner of real property who is a host to social guests owes them only the duty not to willfully, intentionally, or recklessly injure them. The basic rule is that an owner or possessor of land does not owe any duty to a licensee in connection with maintenance of the property.

A possessor must give reasonable notice or warning to licensees if they do any positive act that creates a new, concealed danger. The concealed danger must be highly dangerous to life and limb; it must be such that special precautions must be taken to prevent injury.

Conditions on property that are highly dangerous to life and limb would be such things as open excavations, uneven pavement, standing water of an uncertain depth, crumbling curbs, wet floors, uncleared snow on pavement where people walk, icy walkways, falling objects, inadequate security, insufficient lighting, concealed holes, or defects in chairs or benches.

An owner of land is subject to liability for damages to compensate for bodily harm caused to licensees by a natural or artificial condition if: the owner knew of the condition, realized that it presented an unreasonable risk to their licensees, and had reason to believe that the licensees would not discover the condition or realize the risk.

In other words, if the owner of property fails to meet their duty, the owner may be liable for negligence and have to pay damages to compensate their licensees for any injuries they suffer in an accident involving the condition. But again, the law in most states does not depend on the legal status of the person who is present on some property.

What Duties Do I Owe Invitees?

An invitee is a person who has permission to enter or use another’s premise, either as a business visitor or as a member of the public to whom the premises are held open. The possessor of the property has the following duties to invitees:

  • A duty to inspect the premises; and
  • A duty to warn the invitee of any risks or dangerous conditions that would not be obvious to the invitee.

What Duty Do I Owe to Trespassers?

Traditionally, when it came to trespassers, possessors did not owe any duty of care to trespassing adults except to refrain from willfully and wantonly injuring them. The meaning assigned to “willful or wanton” in the law indicates that it is something more than ordinary negligence and includes a disregard of the risk known to the possessor or a risk so obvious that the possessor must have been aware of it. Or, it could be described as something that poses a risk so great that a reasonable person would know that harm would result from it.

To fall under the standard of liability for willful and wanton conduct, the possessor of property must have actual or constructive notice that a trespasser is on the premises. They may either see the trespasser or be told there is a trespasser. Or, they may have constructive notice when a property possessor should have known a trespasser was there.

There are a few exceptions to the general rule which limits the landowner’s traditional duty to trespassers:

  • A property possessor must use ordinary care to avoid injury to the trespasser who has been discovered in a place of danger on the property;
  • A property possessor owes a duty of ordinary care to those who are frequent trespassers in a limited area where the possessor knows, or has reason to know, of the trespasser’s presence;
  • A property possessor who engages in a dangerous activity on the premises has a duty to warn a person when the possessor is aware of the possibility that the person may come close enough to the dangerous condition to create a risk of injury.

The doctrine of attractive nuisance may apply if the trespasser is a child who may have been tempted to enter onto the property of another by a pool, trampoline, swing set or other condition that appeals particularly to children.

Do I Need a Lawyer for My Property Injury Case?

In the majority of states, the outcome of a personal injury case for injuries a person has sustained on the property of another is dealt with by the law of negligence. However, in some states, it can still turn on the specific legal status of the person injured.

Whether you are suing for injuries or being sued, an experienced property attorney can help you determine the current status of premises liability law in your state. They can also help you pursue a claim for your injuries or defend you if you have been sued. This is an area of the law for which you definitely want to consult an experienced personal injury attorney.

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