I’ve been in a car accident - what now?     Free e-Book     Get your copy

Premises Liability Overview

premises liability

Learn about the status of visitors, duty of care, foreseeability and reasonableness

What most law students remember learning about premises liability is a case involving a trespasser and a rigged shotgun.

The case is Katko v. Briney, and the basic facts were that Briney inherited an old farmhouse that he let sit abandoned for 10 years. However, he didn't want anyone taking his possessions, so he set up a trap for anyone who tried to break inside: a rigged shotgun aimed at their legs.

Katko broke into the farmhouse and sustained devastating wounds at point-blank range.

The issue was whether an owner of an empty, boarded-up farmhouse could use deadly force to protect against trespassers, and the court decided that he could not. Though a homeowner doesn't have to make the home safe for trespassers, he could not use deadly traps against them.

When asked how he would've handled the situation differently, Briney said he would've aimed the gun a few feet higher.

This might not sound like it has much to do with premises liability as a whole. However, Briney owned the premises and had a duty to keep it safe – in some respects – for those who entered it. Even though Katko was a trespasser, Briney still owed him a duty of care.

Premises liability basics

The owner of a piece of immovable property can be held responsible for injuries suffered by those who are present on the premises. The people who are on the premises are visitors, and they are classified as licensees, invitees or trespassers.

  • Licensees: This is a person to whom a license is granted. He or she is licensed to remain on the property with the owner's consent.

    The owner has a duty to warn the licensee of any dangers known to the owner but not to the licensee.

  • Invitees: These are given express or implied invitations by the owner, either for some mutual benefit or something that is being conducted on the property itself.

    This status is not absolute and is limited by the scope intended by the landowner. An invitee is offered the utmost duty of care, however. If an invitee sneaks off to a purposefully excluded area of the property, however, her invitee status may be revoked.

  • Trespassers: A trespasser enters onto a landowner's property for his own advantage and purpose, without the landowner's permission or knowledge. As we learned in the Briney case, the landowner owes a duty not to injure or cause injury to the trespasser. However, he's not under a duty to keep his land in reasonable condition for the trespasser or let him know of hazardous areas.

If the landowner constantly uses one section of the land for setting garbage fires and he knows the trespasser goes there a lot, however, he would be under a duty of ordinary care to let him know.

Generally, a trespasser trespasses at his own peril. However, the discovered trespasser rule states that a landowner must exercise reasonable care for a trespasser's safety once his presence is known.

So why do I care?

This becomes relevant to most people because of accidents on your property. Who's responsible if a mailman slips on ice right by your front door? Is he a licensee or an invitee? What about the next-door neighbor's kid who chases a ball into your back yard and then falls into your pool?

Enjuris tip: Slip and falls are very common and always take a bit of thinking because you have to figure out whose property it was, what the person's status was (invitee, licensee or trespasser) and what duty the landowner owed that individual.

A number of factors are examined to determine the reasonableness and foreseeability when it comes to licensees and invitees:

  • The circumstances under which the person was on the property;
  • The way they were using the property;
  • The foreseeability of the accident; and
  • The reasonableness of the owner's efforts to warn visitors of whatever perils existed.

For instance, if a number of people were present for a party, they would be licensees. The owner might have tried very hard to fix a rotted step leading into the house, but he's not very handy and instead shouted out to everyone, "Hey, heads up! If you walk into the house, avoid the second step!" But the music was loud, so not everyone heard him. Then someone put her foot through the step.

In situations like these, the courts would weigh the reasonableness and effort that the landowner put into warning the licensees and the circumstances in which the licensees were placed. Was that shouted warning enough? Should the landowner have flagged the step somehow?

What about kids?

Children are different. Since they don't have the capacity to understand property dangers as much as adults do, they are granted a higher duty of care. That duty of care is in proportion to their ability to foresee danger. (For instance, a four-year-old child doesn't really understand that she should stay away from construction equipment.) The liability of a property owner is still determined by the ordinary rules of negligence.

Law of attractive nuisance – that shiny thing that looks fun to kids may actually be dangerous!  Tweet this

However, then the law of attractive nuisance comes into the picture. Kids can be… well, not so smart. We love them anyway, but they are distracted by bright, shiny objects and big things that they can play with.

Enjuris tip: The law of attractive nuisance says that a property owner is liable for physical harm to trespassing children – regardless of their status as trespassers – if there is a hazardous condition or object on the land that kids can't appreciate because of their age.

The law of attractive nuisance says that a property owner is liable for physical harm to trespassing children – regardless of their status as trespassers – if there is a hazardous condition or object on the land that kids can't appreciate because of their age.

Basically, landowners have to not injure children because of gravel pits, swimming pools, leaky refrigerators, abandoned cars and whatever else can injure children on someone's property. If something big and "attractive" is there, they have to take steps to mitigate the potential danger.

What about slip and falls?

Now we come the most famous of premises liability cases, the slip and falls. There are so many premises liability cases – dog bites, snow and ice accidents, elevator accidents, amusement park accidents, toxic fumes, swimming pool accidents – but slip and falls take the cake.

Let's say you rent an apartment and also have a parking space out front. There was a snow and ice storm, and your landlord hasn't plowed your parking lot yet. Out the window, you can see the mailman struggling to reach your mailbox.

Then – BOOM. He goes down! You rush outside to see him flailing on the ground like a turtle, and he says, "Ow, my back! I fell on the ice! I can't believe you haven't taken care of this yet!"

The words tumble out of your mouth: "I'm so sorry!"

Pause.

First of all, your landlord was the one responsible for taking care of this invitee. If your contract stipulated that your landlord was the one to plow the snow, then he was the one to take care of the ice. As such, he is the one responsible for taking care of the mailman and his injuries. Additionally, you're a renter. You don't own the property.

Slip and falls are very common and always take a bit of thinking because you have to figure out whose property it was, what the person's status was (invitee, licensee or trespasser) and what duty the landowner owed that individual.

A good attorney can help you figure this out. If you've been in a slip and fall or some other premises liability case, consider taking a look through the Enjuris law firm directory for help!


Have questions about your accident and the law? Get answers!
Downloads:

Free personal injury guides for download to print or save. View all downloads.


Tell your story:
Tell your story or ask a question - What would you want others to know? Tell us what happened in your accident, and how life has changed for you.

Find an attorney:
Search our directory for personal injury law firms.
See our guide Choosing a personal injury attorney.