"Read my lips: The earth is not flat."
- Christopher Columbus, 1492
The world is an obstacle course. There are stairs to climb, potholes to avoid, uneven or cracked pavement, structural defects and many other safety hazards in our way. Often, we can spot and avoid these risks. But, as a "rosie" old nursery rhyme says, eventually "we all fall down."
Sometimes, we get in our own way, hastily tripping over our own feet or failing to watch where we are going. If we failed to take care to avoid obvious hazards, such "contributory negligence" will preclude us from recovering from someone else.
But when defects are hard to spot, property is poorly lit, or other hidden hazards bring us down, property owners and occupiers may be held responsible for injuries resulting from a failure to maintain their premises in a safe condition.
When filing a premises liability case, it is important to understand that not all plaintiffs are treated equally. The degree of care owed to injured victims varies with the circumstances under which they entered the property in the first place:
|Injured Person||Basis for Entering the Property
||Examples||Duty of Care for Victim's Safety
|Invitees||invited or allowed onto the property for purposes related to the owner's or occupier's business||customers, clients, mailman, package delivery, janitorial service||must use reasonable care to see that areas the invitee may be expected to use are safe|
|Social Guests or
Licensees by Invitation
|not conducting business with property owner or occupier, but invited or allowed onto the premises as express or implied guests||dinner guests, friends visiting, your mother-in-law (arguably, a bare licensee?)||must use reasonable care to make the premises safe or to warn the guest of known dangerous conditions that cannot reasonably be discovered by the guest|
|Bare Licensees||not invited and not serving the interests of the owner or occupier, but allowed on the premises to serve their own interests||fund raisers, solicitors, door-to-door salespeople, missionaries||must refrain from willful injury or entrapment; otherwise, no duty to remove hazards or provide for safety
|Trespassers||neither invited nor allowed on the premises
pedestrians taking a shortcut through your backyard, rowdy teens sneaking
into your swimming pool, burglars
||must refrain from willful injury or entrapment; otherwise, no duty to remove hazards or provide for safety|
Notice of Defect
Property owners are not strictly liable for all injuries occurring on the premises. Even where business or social guests suffer injury, owners, occupiers and landlords are not considered to be insurers of safety. Since they may only be held liable for negligence in failing to exercise reasonable care, even proving the presence of a hazardous condition is not enough to win.
To establish premises liability, injured guests must show that those responsible for maintaining the premises had sufficient notice of the hazard but failed to take reasonable safety precautions. For example, if a PhatFoods shopper slipped on olive oil from a leaking container in aisle 3, she must prove that the grocery store either knew about the leak with enough time to remove it before the accident, or that it should have discovered this hazard with reasonable inspection. If, by contrast, it appears that the leak just started prior to the accident, the grocer will argue that it lacked sufficient notice and did not breach any duty of care toward the injured patron.
These cases typically turn on these types of factual questions and it is not always easy to produce sufficient evidence of notice. That is why it is particularly important to conduct a thorough investigation of the circumstances as soon as possible following such accidents.
Premises liability cases often pit an injured tenant against an allegedly negligent landlord.
Landlord's Duty with Respect to Common Areas or Reserved Facilities
The landlord who sets aside a portion of the property or reserves facilities for the common use of tenants, owes the tenants a duty to exercise reasonable care to keep those portions or facilities in a safe condition. This duty extends to the tenant's family, guests and invitees.
Landlord's Duty to Protect Against Criminals
Your landlord may not be your bodyguard. But he still has a duty to exercise reasonable care for the safety of tenants and invitees. If a landlord knows or by the exercise of reasonable care should know that criminal activity against persons or property has occurred on the premises, he must take reasonable measures to protect tenants and invitees against these crimes.
In determining whether the measures taken by the landlord were sufficient, the landlord's acts can be measured only by the criminal activities occurring on the landlord's property and of which the landlord knew or should have known and not by those criminal activities occurring generally in the surrounding neighborhood.