Premises Liability Law

Premises liability law is the body of law that makes the person who is in possession of land or premises responsible for certain injuries suffered by persons who are present on the premises.

Although some premises cases, such as so-called "slip and fall" cases, may seem simple, in many states the law favors the premises owner against claims of accidental injury by a visitor who slips or trips and falls on their property. When assessing a premises liability case it is thus often helpful to consult with a lawyer.


Possession of Premises

For purposes of premises liability law:

  • The term "premises" includes land, premises, or places of business.
  • The term "possessor" refers to the person in possession of the premises.

A person is deemed to be in possession of land or premises, and thus subject to a potential premises liability claim, when:

  • The person occupies the premises with intent to control them; 
  • The person has occupied the premises with intent to control them, and no other person has later occupied the premises with intent to assert control; or 
  • If no other person is in possession and control of the premises, the person is entitled to immediate occupation of the premises.

It is possible to be in possession of land that you do not own. For example, a tenant is in possession of property that is covered by a rental agreement, and will normally hold exclusive possession of some or all areas of the rented property.

Duties Owed to an Injured Person

As part of a premises liability case, in most jurisdictions it is necessary to examine the circumstances under which a person entered the land or premises where an injury occurred. The nature of the entry may significantly affect the property holder's duty to warn or protect the person against injury.

Under traditional premises liability law, an injured person is classified as an invitee, a licensee, or a trespasser. Some jurisdictions have modified these traditional categories, or have eliminated these distinctions from the analysis of a premises liability case.

The concept of a trespasser is familiar, but what are an invitee and licensee, and how do these categories affect liability for dangerous premises?

Invitee

An invitee is a person who enters the premises of another in response to the invitation of the premises holder for their mutual advantage. For example, an invitee may enter the premises for a commercial purpose, such as to participate in a business transaction or to purchase goods.

An invitation may be either express or implied. For example, as retailers actively invite members of the public to enter the premises and to purchase goods while present in the premises, a customer who enters a grocery store or department store is an invitee.

A person in possession of premises owes a high duty of care to an invitee. Under typical state law, a possessor has the duty to use ordinary care to warn or otherwise protect an invitee from risks of harm from a condition on the possessor's premises if:

  • The risk of harm is unreasonable, and

  • The possessor knows of the hazardous condition or should be aware of the condition through the exercise of ordinary care, and should recognize that the condition presents an unreasonable risk of harm to an invitee.

In order to avoid liability, the possessor may have a duty to periodically inspect the premises for hazards that may be encountered by invitees. For example, a retailer should periodically check its floors for the presence of spilled or broken merchandise and should make sure that products are placed securely on shelves such that they won't fall onto customers.

Licensee

A licensee is a person who enters and remains on land with the consent of the person of control of the premises, for any purpose other than a business or commercial purpose. As with an invitee, permission to enter the premises may be express or implied. Although guests may speak of being invited to visit somebody's home, a social guest is classified as a licensee, not as an invitee.

Under typical state law, the person in possession of premises is liable for any physical injury suffered by a licensee on the premises, provided that the injured person establishes the following three elements:

  1. The person in possession of the land knew or reasonably should have known of a hazardous condition, should have realized that the condition posed an unreasonable risk of harm to the licensee, and should have expected that the licensee would not recognize or discover the hazard;

  2. The person in possession failed to exercise reasonable care to make premises safe, or to warn the licensee of the dangerous condition and the risk involved; and

  3. The licensee did not know or have reasonable cause to know of the condition and the risk involved before suffering an injury as a result of the dangerous condition.

For example, if a homeowner knows the railing along a stairway is broken, but the railing would not appear to be broken when viewed by a reasonably observant individual, the homeowner may be liable to an invitee who does not have notice of the dangerous condition and is injured when the railing gives way.

Trespasser

A trespasser is a person who enters the land or premises of another without permission from the person in control of the premises. Trespassers enter the property for their own purposes. Entry is neither based upon the express or implied invitation of the person in possession of the property, nor to perform a duty for the benefit of the person in possession.

It is not normally required that the person in control of the premises prove that the trespasser had unlawful intent when entering the property. It is sufficient that the entry be made without consent and for the trespasser's own purpose.

Persons in control of premises owe the lowest legal duty to trespassers. They do not normally have a duty to warn trespassers of any dangerous conditions on the property or to make the premises safe for the benefit of a possible trespasser. However, if the person in control of premises is aware that trespassers are present on the property, the person may be required to exercise ordinary care to avoid causing injury to the trespasser.

Public Roads and Sidewalks

In many jurisdictions, persons in control of premises are required to keep the public sidewalks in front of their premises clear of ice and snow, and to maintain the premises so as to reduce or avoid the risk of injury to members of the public who are passing the premises on a sidewalk or public street.

Sidewalk maintenance responsibilities may arise from common law, legal precedents that define the duties of premises owners. Responsibility may also arise from state statutes or from local ordinances.

Special Circumstances

In some situations, special rules apply to dangerous activities or unusual hazards that may affect the determination of liability for injuries.

Ultra-Hazardous Activities

If the person in control of land is engaged in ultra-hazardous activities on the land, such as keeping wild animals, or storing or using explosives or dangerous chemicals, the person will typically face a higher duty of care to any person who might encounter the special hazard.

In some jurisdictions, the person may have an absolute duty of care and may be held strictly liable for injuries that result from the dangerous activity even if the injured person is a trespasser.

Inadequate Security

Persons in control of premises are not normally liable for the criminal acts of third parties that cause injuries to people on their premises. However, if there is a history of criminal activity on the premises, it may be possible for a person injured as the result of a crime to make an injury claim by alleging that the person in possession owed a duty to implement adequate security measures to prevent the injury.

Attractive Nuisance

Some jurisdictions apply a special duty of care when hazardous conditions on premises may be particularly attractive to young children. For example, if the premises include a swimming pool or trampoline, the holder of the premises may have a duty of care to protect children from injury even if a child enters the premises as a trespasser.

Non-Delegable Duties

The duties of a person in possession of premises to protect visitors from injury are not normally delegable to others. That is, as long as the holder of the premises remains in possession, the holder cannot escape responsibility for an injury merely because it contracted with another company to provide maintenance services.

For example, the owner of a store or shopping center may hire a plowing service to remove snow from walkways and parking lots. However, the business remains responsible for the condition of the parking lot, and may be liable for injuries suffered by people who enter the property before snow and ice have been cleared or due to improper snow and ice removal.

Similarly, a landlord is responsible to maintain an apartment building in a reasonably safe condition and may be held liable for injuries that result from dangerous conditions even if it has hired a management company to provide regular inspection and repair of the premises.

Defenses to Premises Liability Claims

Common defenses to premises liability claims include:

  • Obvious danger: With a reasonable exercise of care, the person who was injured could have observed the dangerous condition and avoided injury.
  • Notice: The person claiming injury had reasonable notice of the hazardous condition that resulted in the injury, and should have avoided the hazard.
  • Assumption of risk: The injured person knew of the hazardous condition and voluntarily and knowingly accepted the risk of injury.

When a visitor has more than one way to enter, exit, or pass through premises, and only one passage is unduly hazardous, it may be possible for the holder of the premises to defend against an injury claim by proving that the visitor knowingly chose the more dangerous path.

The availability and elements of defenses to premises liability claims vary by state, and may also vary based upon the circumstances of an injury.

A premises owner or occupant who faces a potential lawsuit and whose premises are insured should file an insurance claim. Insurance policies impose deadlines for reporting injuries that may result in claims, and insurance companies may attempt to deny coverage if the report of an injury or legal claim is not made in a timely manner.

Copyright © 2003 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on May 8, 2018.