Premises liability is a legal theory of tort liability and is based on a claim that a dangerous or defective condition on a landowner’s property (premises)—or a negligent activity on the landowner’s property—caused the claimant or plaintiff’s personal injuries or property damage.
Slip and fall accidents, snow and ice accumulation, dog bites, and children and others drowning or being injured in or near swimming pools are common subjects of premises liability claims.
In many states, laws require property owners to exercise reasonable care toward all persons entering their premises and to warn all such persons of concealed, hidden, or latent conditions that are unsafe—conditions that are not open and obvious.
But in some states premises liability is a special form of negligence in which the duty owed to the plaintiff depends on the plaintiff’s status on the premises at the time of the incident. In these states the plaintiff’s status is usually classified as that of an invitee, a licensee, or a trespasser.
Premises owners and operators owe a duty to keep their premises safe for invitees against conditions on the property that pose unreasonable risks of harm. Generally, a premises owner has no duty to protect invitees from criminal acts by third parties. But courts have recognized an exception when the owner knows or has reason to know of a risk of harm to invitees that is unreasonable and foreseeable.
In a premises liability case, the plaintiff must establish a duty owed to the plaintiff; breach of the duty; and damages proximately caused by the breach. Whether a duty exists is a question of law for the court and turns on a legal analysis balancing a number of factors, including the risk, foreseeability, and likelihood of injury, and the consequences of placing the burden on the defendant.
To prevail as an invitee-plaintiff in a premises liability case, the plaintiff must prove (1) the plaintiff was an invitee, who entered the defendant’s premises with the defendant’s knowledge and for their mutual benefit; (2) the defendant was the owner or possessor of the premises; (3) the defendant had actual or constructive knowledge of some condition on the premises (knew or should have known about the condition); (4) the condition on the premises posed an unreasonable risk of harm to the plaintiff; (5) the defendant breached its duty of ordinary care by failing to warn the plaintiff of the risk, or to reduce or eliminate the risk; and (6) the defendant’s failure to use such care proximately caused the plaintiff’s injuries.
A licensee is a person privileged to enter and remain on the premises of another by express or implied permission of the owner, and not by any express or implied invitation. The difference between a licensee and an invitee is that an invitee is present for the mutual benefit of himself and the owner, while a licensee is on the premises only for his own purposes, not because of any business dealings with the owner.
In the absence of some relation which inures to the mutual benefit of the two, or to that of the owner, no invitation can be implied and the injured person must be regarded as a mere licensee. For example, a person who enters a landowner’s property to hunt or fish for free is a licensee. Friends, family, and neighbors visiting a landowner and door-to-door salespersons stopping by uninvited are also licensees.
Compared to an invitee, a lower standard of care is due to a licensee. A proprietor or licensor has a duty not to injure a licensee on the premises by willful, wanton, or gross negligence.
To prevail as a licensee-plaintiff in a premises liability case, the plaintiff must prove (1) the plaintiff was a licensee with the express or implied permission of the defendant to enter and remain on the premises; (2) the defendant possessed—owned, occupied, or controlled—the premises where the injury occurred; (3) a condition on the premises posed an unreasonable risk of harm; (4) the defendant had actual knowledge of the dangerous condition; (5) the plaintiff did not have actual knowledge of the dangerous condition; (6) the defendant did not exercise reasonable care to warn the plaintiff of the risk, or to reduce or eliminate the risk; and (7) the defendant’s failure to use such care proximately caused the plaintiff’s injuries.
A person is a trespasser where he enters upon the property of another without any right, lawful authority, or express or implied invitation, permission, or license—not in the performance of any duty to the owner or person in charge, or on any business of such person, but merely for his own purposes, pleasure, or convenience, or out of curiosity, and without any enticement, allurement, inducement, or express or implied assurance of safety from the owner or person in charge.
To prevail as a trespasser-plaintiff in a premises liability case, the plaintiff must prove (1) the plaintiff was a trespasser who entered the premises for his own purposes, without invitation, or the express or implied permission of the defendant; (2) the defendant possessed—owned, occupied, or controlled—the premises where the injury occurred; (3) a condition on the premises posed an unreasonable risk of harm; (4) the defendant acted willfully, wantonly, or with gross negligence; and (5) the defendant’s willful, wanton, or grossly negligent actions proximately caused the plaintiff’s injuries.
Where to Find Premises Liability Laws
Premises liability laws may be located in a state’s statutes or in its court opinions—also known as common law or case law.