Premises Liability Defenses

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 What Is Premises Liability?

In short, premises liability is what 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 to accomplish this. As a legal concept, it generally occurs in tandem with personal injury cases in which a person’s injury was caused by unsafe or defective conditions on someone else’s property.

Premises liability claims are commonly based on the legal concept of negligence, as are many personal injury claims. The legal term negligence 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 certain precautions and actions, as opposed to the person’s direct actions.

In order to prove negligence, and therefore premises liability, the plaintiff generally must prove the following elements:

  1. The owner owed a duty of care to the visitor or person injured on their property;
  2. There was a dangerous, unsafe, or defective condition on the owner’s property;
  3. The owner knew of the dangerous, unsafe, or dangerous condition but failed to remedy the situation; and
  4. That the injury occurred due to 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 due to another’s actions, or inaction. 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.

Therefore, it must be proven that the property owner’s negligence was the “actual and proximate” cause of the injuries being claimed (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 as a result of the property owner’s negligence.

Who Can Be Held Legally Liable?

Landowner liability is dependent upon the tort liability status of the victim. A tort is a legal term that describes a 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 liable if they contributed to their own injury apart from the actions of the property owner and their negligence. 

Examples of statuses of victims in premises liability cases include invitees, licensees, and trespassers. In general, a property owner owes this highest duty of care to invitees. They then owe a lesser duty of care to licensees. Finally, property owners owe little to no duty of care to trespassers.

The tort liability scale can be broken down as follows:

  • Invitees: These are 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, and if the risk of harm is unreasonable. The property owner also has a duty to inspect the premises in order to make themselves aware of any risks;
  • Licensees: Licensees are social guests that have entered or remained on the property for purposes other than business. They have special permission to do something on, or with, the property owner’s property. The property owner is responsible for warning licensees of dangerous conditions that they are aware of, and if the licensee did not know or did not have a reason to know about the dangerous conditions; and
  • Trespassers: These are people who have entered or remained on the premises without the permission of the property owner. State laws regarding 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. Property owners do have a duty to warn known 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, because of the attractive nuisance doctrine. This means if the property owner has something on their property that would attract children to use it, such as a slide, they must take reasonable precautions to make sure the slide is safe because it is likely to attract children.

If the property owner is found to be negligent or breached their duty of care to prevent an accident or injury from occurring on their property, the plaintiff may be awarded damages. These damages could include:

  • Pain and suffering;
  • Future and present medical bills;
  • Lost income or loss of earning capacity; and/or

The property owner may also be ordered to repair or fix the dangerous condition that led to the injury.

Are There Any Defenses to Premises Liability?

If you are a property owner and find yourself facing a premises liability claim, there are some legal defenses available to you. The most important defense will be to prove that you were not actually negligent. Additionally, other common defenses include:

  • Assumption of Risk: This defense can arise when the plaintiff was aware of the risk, and disregarded the risk, which caused them to assume the risk of being injured. The plaintiff cannot recover any damages if they knowingly and voluntarily assumed a risk of harm in connection with the negligence of the defendant;
  • Contributory Negligence: Simply put, the plaintiff contributed to their own injury. Contributory negligence is not available as a defense in every jurisdiction; and
  • Comparative Negligence: The plaintiff’s own negligence contributed to their injury; they are partially negligent in their own injury.

Do I Need an Attorney for My Premises Liability Lawsuit?

It is important to consult with a skilled and knowledgeable personal injury attorney. An experienced personal injury attorney will be able to help you determine which legal defenses are available to your specific case.

Additionally, they will be able to represent you in court if someone was injured on your property. Alternatively, if you were injured on someone else’s property, a personal injury attorney can file a suit against the property’s owner.


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