Premises Liability: An Overview

The term, “premises liability” refers to the legal responsibility of an owner or occupier of property for accidents and injuries occurring on that property. A landowner’s liability for negligence arises from his duty to make the land reasonably safe for persons on it.

Premises Liability Trends

Traditionally, the extent of the landowner’s duty depended on whether the person on the land was an invitee (a person invited onto the land to conduct business with the possessor, such as a shopper in a department store), a licensee (a person who is present for non-business, non-commercial purposes, such as a social guest), or a trespasser (a person who enters upon the land with no right to do so).

The more recent trend is to distinguish only between those who are lawfully or unlawfully on the property. In regard to children, however, even if they are not authorized to be on the property, a landowner has a duty to warn of dangerous conditions if he knows, or should know, that children are likely to be on the premises. He may also be obligated to erect barriers or take similar steps to keep children away from the danger.

New York Law

In New York, the visitor’s status as invitee, licensee, or trespasser does not alone determine the scope of the duty owed in a premises liability case. It is merely one factor to be taken into account in assessing whether a landowner acted reasonably under specific circumstances. An additional element to be considered is comparative fault. A visitor has a duty to exercise reasonable care for her own safety. When she fails to exercise such care, her recovery for damages may be limited or reduced by the extent of her own negligence.

In order to hold a landowner liable for injuries occurring on his land, the visitor must prove injury as well as the cause of the injury. She must show that a dangerous condition existed on the land and that the landowner created or had notice of the condition. She must further demonstrate that the landowner failed to take reasonable steps to fix the dangerous condition or to warn visitors of its existence. A landowner also has a duty, although a limited one, regarding public ways abutting his property, such as sidewalks.

It is not enough, for example, for a plaintiff to state she was injured by falling on a pile of wet leaves on defendant’s property. A pile of leaves, even when wet, are not held as a matter of law to be inherently dangerous. In addition, even if a condition is dangerous, a landowner must be shown to have known about it. Thus, if a property owner repaints a curb outside his store and plaintiff slips on it, she must show that the owner knew or had reason to know that the paint might be slippery when applied to a curb. This reasoning applies to other potentially slippery substances such as wax or polish.

Knowledge Of The Danger

A landowner’s knowledge of a dangerous condition may be actual (he saw it himself or was otherwise made aware of it), or constructive (the condition was visible and apparent and existed for a long enough period of time that the owner should have discovered it). In one case, a plaintiff was injured after slipping and falling on water in the floral department of a grocery store. The owner was held liable after several store employees testified that, as a result of water dripping from bouquets, there was a recurring condition of water on the floor. Further, the owner had actual notice of the condition and constructive notice of each recurrence of the condition.

The “recurring condition” theory does have its limits, however. In another case, plaintiff slipped on a beer bottle left on the stairwell of an apartment building. The building’s superintendent admitted knowing of a recurring dangerous condition caused by debris in the stairwell. But the New York Court of Appeals found no liability on the part of the owner because the plaintiff failed to prove the owner’s actual or constructive knowledge of the beer bottle that had caused her to fall.

Similarly, a general awareness of a building’s stairs becoming wet during inclement weather does not establish an owner’s knowledge of the specific icy conditions causing plaintiff’s injury. The “recurring condition” theory has not been expressly rejected in New York and lower courts continue to decide cases on that mode of reasoning.

Open And Obvious Hazards

Previously, landowners were not held liable for dangerous conditions that are open and obvious to visitors. Recently, however, courts have ruled that, although a hazard may be obvious, the landowner may still be liable for failure to maintain the property in a safe condition. If a dangerous condition exists on neighboring premises, a landowner has no duty to warn or protect others from the danger unless the owner created or contributed to the danger.

Thus, if a tree on abutting property falls on a parked car in the owner’s driveway and causes injury, it is not necessarily foreseeable that the owner would have known where and when the tree would fall, even if he had recently seen it tilting in a severe storm.

Contact An Attorney

Premises liability cases can be tricky to prove. They require careful analysis by a competent attorney as to the facts as well as the owner’s duty and liability. In addition, the attorney should be consulted in a timely manner in order to protect and preserve evidence in the case and ensure that claims are field within the statute of limitations.