Premises Liability

Possible Recovery for Injuries that Occur on the Land of Another

People who are injured on the property (or "premises") owned and/or maintained by others may be able to recover for their damages (e.g., medical expenses, pain and suffering, and lost wages). Their success may depend on a number of factors, including the circumstances surrounding the injury and the laws of the jurisdiction where the injury occurred.

Except where the injury is intentional, it must usually be the result of "negligence" on the part of the landowner or person in charge of the property for recovery. This usually requires a finding that the landowner:

• Owed a duty to the injured person;
• Breached that duty;
• Resulting in actual damages that were the direct result of the breach.

The existence and nature of the duty can depend on many factors, including local state law.

Traditional Categories of People Injured on Property

Historically in most jurisdictions, determination of the duty owed to injured persons depends on their status on the property. The typical categories and duties owed include:

• Invitees. Commonly, an invitee is one who has been invited onto the property, actually or impliedly, as members of the public (museums, etc.) or for business reasons (stores). Generally, landowners owe invitees a duty to keep the property reasonably safe and to warn of non-obvious dangers known by the landlord, who must make reasonable inspections and correct any dangers.
  
• Licensees. Licensees are persons on the property for social or purely their own purposes (dinner guests may be invited, but are not "invitees"). Landowners owe a lesser duty to licensees to warn of known dangerous conditions that create unreasonable risk of harm and are not likely to be discovered by the licensee. There is usually no duty to inspect for or repair problems.
  
• Trespassers. One who comes onto the property without permission or authority is a trespasser. A landowner owes no duty to undiscovered trespassers. Once the presence of the trespasser is known, the landowner owes a duty not to harm them and warn of or make safe known artificial conditions likely to cause death or serious bodily injury, but which are not likely to be discovered by the trespasser.

A breach of these duties may result in a finding of negligence (and liability) on the part of the landowner, if there is damage and direct causation linked to the breach. What constitutes a breach of duty depends largely on the circumstances of each case.

Modification or Abandonment of Categories in Some Jurisdictions

The above distinctions were well-established, but a number of jurisdictions have chosen to abolish them, in whole or in part. In some jurisdictions, the distinction between invitees and licensees has been abandoned in favor of a general duty of reasonable care owed by landowners to all lawful entrants. The focus becomes the foreseeability of injury, rather than the status of the injured person.

In other states, all three categories have been abandoned and a uniform duty to use reasonable care for the safety of all persons reasonably anticipated to come on the property has been imposed. Only an unreasonable risk of harm gives rise to a duty. Generally, open and obvious conditions do not create a duty.

Special Rules for Child Trespassers – "Attractive Nuisance"

When children are the trespassers, courts and laws in many states impose a higher duty to use ordinary care to avoid foreseeable risks of harm caused by artificial conditions. The "attractive nuisance" is usually an artificial, dangerous condition that is likely to harm children because of their inability to appreciate the risk. Examples can include abandoned cars and lumber piles. To recover, the injured child must generally show:

• The existence of such a dangerous condition on the property, of which the owner or occupier knows or should know.
• The owner knows or should know that children are likely to trespass and go near the dangerous condition.
• The condition is likely to cause injury, as the children will not appreciate the risk.
• The use to the owner of the condition is slight.
• The expense of eliminating the danger is also slight, compared with the risk.

The traditional attractive nuisance doctrine required the injured child to show attraction to the dangerous condition, but most courts and laws now focus on the foreseeability of harm to a child. The "attraction" to the child becomes part of a showing of foreseeability.

Recreational Use and Government Land Liability

Most states now have laws granting some immunity to property owners who open up their lands for public recreational uses, such as hunting and fishing. The purpose of such immunity was generally to encourage landowners to make their lands available without fear of liability. This protection is generally not available to landowners who charge fees for such use or who maliciously fail to warn visitors of known hazards they are likely to encounter.

When the injury occurs on public or government land, there is also frequently immunity from suit. In addition, there may be special rules, deadlines, and procedures that must be carefully followed to pursue a claim. For these and other claims arising out of injuries on the property of others, the rules and requirements for recovery generally require the assistance of an attorney familiar with the applicable laws and regulations.

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