Premises liability is the legal theory that holds property owners responsible for accidents and injuries that happened on their property. This includes any accidents and injuries that occurred in and around their business, or in their home.
Premises liability law requires that property owners ensure the safety of any person who enters their property, and take all reasonable measures in order to accomplish this. As a legal concept, it is commonly associated with personal injury cases in which a person’s injury was caused by unsafe or defective conditions on someone else’s property.
Additionally, premises liability claims are commonly based on the legal concept of negligence, as are many personal injury claims. This refers to a person failing to exercise reasonable care, with that failure resulting in the damage or injury of another person. Negligence focuses on a person’s failure to take required precautions and actions, as opposed to the person’s direct actions.
In order to prove negligence, and as such premises liability, the plaintiff generally must prove the following elements:
- The owner owed a duty of care to the visitor or person who was injured on their property;
- There was a dangerous, unsafe, or defective condition on the owner’s property;
- The owner knew of the dangerous, unsafe, or dangerous condition but failed to remedy the situation prior to the visitor or person entering the property; and
- That the injury occurred because of the owner’s failure to exercise their duty of care to prevent the accident and resulting injury.
A duty of care is generally owed to another person in any situation in which a person may foreseeably be injured by another’s actions, or inaction. As such, a breach of this duty occurs when a person such as the property owner does not act as reasonably or prudent as another person would under the same circumstances.
This is why it must be proven that the property owner’s negligence was the “actual and proximate” cause of the injuries being claimed; this is also referred to as causation. Once the other three elements have been proven, the plaintiff must then prove that there was some quantifiable loss or damage resulting from the property owner’s negligence.
Who Can Be Held Liable For Premises Liability Issues?
Landowner liability largely depends on the tort liability status of the victim. A tort is a legal violation in which one person causes damage, harm, or injury to another. Tort liability refers to who is responsible for the damage, harm, or injury. A victim may be held liable if they contributed to their own injury apart from the actions of the property owner and their negligence.
The tort liability scale is as follows:
- Invitees: Customers or patrons who have been invited onto the property by the owner. As such, the property owner has a duty to warn all invitees of risks that they are aware of, as well as if the risk of harm is unreasonable. Additionally, the property owner has a duty to inspect the premises in order to make themselves aware of any risks;
- Licensees: Social guests that have entered or remained on the property for purposes other than business. They generally have special permission to do something on, or with, the property owner’s property. The property owner is responsible for warning licensees of all dangerous conditions that they are aware of, and when the licensee did not know or did not have a reason to know about the dangerous conditions; and
- Trespassers: People who have entered or remained on the premises without the permission of the property owner. State laws governing trespassing vary, but in general, a property owner does not have a duty to warn the trespasser of dangerous conditions. This is especially true if the property owner is unaware of the trespasser’s presence. However, property owners do have a duty to warn known and/or tolerated trespassers of any dangerous conditions.
Special duties apply to child trespassers, in that property owners must take special precautions in order to prevent harm to child trespassers. This is because of the attractive nuisance doctrine which states that if the property owner has something on their property that would attract children to use it, such as a swing set, they must take reasonable precautions to ensure that the swing set is safe because it is likely to attract children.
If the property owner is found to be negligent, or if they breached their duty of care to prevent an accident or injury from occurring on their property, the plaintiff may be awarded damages. Such damages could include:
- Pain and suffering;
- Future and present medical bills;
- Lost income or loss of earning capacity; and/or
- Punitive or treble damages.
Additionally, the property owner may be ordered to repair or replace the dangerous condition that led to the injury.
Can A Childcare Facility Be Held Liable For Injuries To Children?
It is important to note that in a legal context, a nursery school or day-care center is not primarily designed to ensure the safety of every child in attendance. However, the facility does owe them a considerably high degree of care with respect to:
- The ages of the children;
- The activities they can engage in; and
- The employee’s ability to foresee and avoid perils, among other circumstances.
Courts have generally held that preschool nurseries are primarily intended to provide supervision. As such, the duty owed by nurseries and other child care facilities is substantially different from what is owed by schools whose primary function is education and not supervision.
Generally speaking, courts use three different legal theories in order to hold childcare facilities liable for injuries to children:
- Negligence: A breach of the child care facility’s duty to the children which causes injury may result in the facility being liable for negligence, as was previously mentioned. An example of this would be if a child is hit in the face by a baseball bat at summer camp. The child and their parents may be able to recover from the summer camp for the injuries, depending on the level of care that the counselors were exercising.
- Continuing the example, one counselor was supervising 10 to 15 children when they noticed one child pick up a baseball bat, practice swinging the bat, and struck the child who was walking behind them and looking down at something they were carrying. Here, the court will most likely hold the summer camp liable for negligence, stating that supervision was inadequate under the circumstances;
- Negligence Per Se: Negligence per se means that an act is inherently negligent because a law was broken in some manner. In most jurisdictions, there are statutes which regulate childcare facilities; as such, if a child is being watched by a childcare facility and is injured, and a law was broken, the facility may be liable under a theory of negligence per se.
- An example of this would be how a daycare center in violation of a statute requiring a certain ratio of staff members to children could be liable for any injuries that result as a consequence of violating that specific law; and
- Res Ipsa Loquitur: Res Ipsa Loquitur, Latin for “the thing speaks for itself,” describes the legal theory that harm would ordinarily not occur without someone’s negligence. Courts have applied res ipsa loquitur in childcare injuries, using the reasoning that the child would not be injured unless the facility was negligent.
- An example of this would be if a young child is in nursery school when they suffer a concussion and nerve damage. The child’s parent dropped them off at the school, and when they returned to pick them up, they were told that the child had an accident and “wet their pants.” When the parent returned home, they found that the child had crossed eyes and a sizable bump on their head. The court will most likely apply res ipsa loquitur, although the cause of the injury was mysterious; this is appropriate because there is a reasonable inference that the defendant was negligent, and that their negligence caused the child’s injury.
Do I Need A Lawyer To Hold A Childcare Facility Liable For Injuries To Children?
If your child has been injured at a childcare facility, a personal injury attorney can help you understand your legal rights and options according to your state’s specific premises liability laws.
Additionally, an experienced personal injury attorney will also be able to represent you in court, as needed.