Premises Liability Law

Premises liability is a legal concept that is typically associated with a personal injury case. And like most personal injury cases, premises liability involves negligence on the part of at least one of the parties.

What is Premises Liability?

Premises liability is the liability of premises’ owners and/or occupiers of premises/tenants for injuries occurred on their premises.

For example, liability for:

• trip and fall incidents due to a raised sidewalk flag in front of the premises;
• slip and fall incidents due to icy or wet condition;
• poor or no maintenance of the premises;
• dog bites;
• fires;
• ceiling, floor, or wall collapses;
• elevator incidents.

If the incident on the premises was caused by the negligence of the owner and/or occupier, the injured individual can sue for the injuries and damages suffered, if all the elements of negligence are met:

1. A potential defendant owed a duty of reasonable care to the injured individual, and
2. That duty was breached by defendant, and
3. That breach was the actual and proximate cause of individual’s injury, and
4. That individual suffered damages because of that breach

Though the presence of the above elements establishes a prima facie case of negligence, there are two more factors to consider before bringing a case based on premises liability as they directly affect the extent of the liability.

These two factors are:

1. The location of the accident (on what part of the premises the injury occurred)
2. The legal status of the injured individual on the premises

Let’s take a closer look at these two elements as they are specific and crucial to premises liability.

The Location of the Accident

The liability of the premises owner can depend on the location and conditions of the accident.

Natural Conditions

The premises’ owners are not responsible for the injuries sustained by individuals off the premises if the injury was caused by natural conditions on the premises absent from any actions of the owner/occupier. For example, injuries sustained due to natural accumulations of rain or snow.

However, if the owner or occupier attempted to rectify the dangerous natural condition and did it in a negligent way, the owner will be responsible for the injuries sustained due to his negligence.

Another example of the natural condition when an owner may be held liable for the outside of the premises individual’s injuries and/or damages, when such injuries or damages were caused by trees (or branches from trees) planted on the premises and fallen due to heavy storms or winds.

If prior to the injury/damage, the owner was not aware of the risk, conducted regular inspections of the tree, properly maintained it, cut loose branches, and made all other reasonable steps to ensure that it did not bear any risk of injury/damage to those on and off the premises, the owner will not be liable.

Artificial Conditions

Contrary to the above, if the individual sustained injuries/damages outside of the premises, the owner of the adjacent land can be responsible for these injuries/damages if they were caused by the artificial condition or structure on the land, or by activities on the premises.

The basis of the liability is the duty of the owner to protect individuals on and off the premises from unreasonable risk of harm by exercising reasonable care in the ownership and maintenance of their property.

The Legal Status of the Injured Individual on the Premises

Under the traditional rule many courts in the United States follow, even when a dangerous condition on the premises was a direct cause of the individual’s injury/damage, the extent of the premises liability will depend on the legal status of that individual, which is mostly determined by the purpose for which the individual entered the premises and/or their connection with the owner.

Depending on the purpose and/or connection, the injured individual’s status can be one of the following:

• Trespassers – individuals who were not invited by the owner/occupier to enter the premises and entered the premises without the permission of the owner/occupier of the premises;
• Licensees – individuals who entered the premises for their own purpose or business and with the permission with the owner/occupier of the premises (social guests are licensees);
• Invitees – individuals who were invited to enter the premises by the owner/occupier of the premises for a purpose connected with the business of the owner/occupier of the premises or for a purpose for which the premises are open to the public.

Depending on the legal status of the individual, an owner/occupier owes him/her a different level of duty.

• Trespassers – whether an owner/occupier owes any duty to a trespasser depends on whether a trespasser was an undiscovered, discovered, or anticipated trespasser. While an owner/occupier owes no duty to an undiscovered trespasser, as to a discovered or an anticipated trespasser, an owner/occupier owes them a duty to warn them about a known to the owner/occupier, unsafe, hidden, artificial condition that involves a risk of a serious bodily injury or death.

A lower standard applies to minor trespassers and is known as an “attractive nuisance doctrine.” For an owner/occupier of the premises to be liable according to this doctrine, he/she knows or should know about the dangerous condition on the premises, should know or in fact, knows that the area in the vicinity of the condition is frequented by children and that the condition can cause injuries to children.

• Licensees – an owner/occupier of the premises has a duty to warn of an artificial or naturally dangerous condition known to them, but which is unlikely to be discovered by a licensee and which creates an unreasonable risk of harm to a licensee. For licensees, an owner/occupier does not have a duty to inspect or repair the premises.
• Invitees – an owner/occupier of the premises owes the same duties owed to licenses, but in addition to that – a duty to inspect the premises to discover a dangerous condition and make them safe.

Defendant’s Awareness of the Dangerous Condition

Defendants can be held liable for the litigant’s injuries only if defendants either created a dangerous condition by their actions or prior to the incident they had actual and/or constructive notice of that dangerous condition.

In most of the premises liability cases, the cornerstone of the case is the defendants’ knowledge of the dangerous condition on their property which creates a substantial risk of injury/damage to those on/off the premises even before it has caused any harm to them.

• Actual notice – The defendant knew of and was informed of the dangerous, unmaintained, hazardous, negligent, improper, and/or unsafe conditions on its premises.
• Constructive notice – The dangerous, unmaintained, hazardous, negligent, improper and/or unsafe condition and or conditions on defendant’s premises existed for such a length of time that the defendant by adequate, proper sufficient and/or timely inspection knew or should have known thereof.

Role of Injured Individual’s Own Conduct

Talking about the responsibilities, duties, and fault of the premises’ owner/occupier, before bringing a case a litigant should also assess his or her own conduct from the perspective whether it did or did not contribute to his/her injuries, meaning he/she exercised reasonable care under certain circumstances (a care that an average person would exercise in the litigant’s/plaintiff’s position).  Depending on the jurisdiction, the courts apply either a contributory or a comparative negligence system.

Contributory negligence

The courts that apply a contributory negligence system will completely bar a litigant’s right to recovery if the litigant’s own conduct in any way contributed to their injuries.

Comparative negligence

In the jurisdictions that apply a comparative negligence system, percentage of the litigant’s own negligence will be assessed by a trier of fact and, ultimately, will be used to reduce litigant’s damages accordingly. There are states that have adopted partial comparative negligence and there are states that have adopted pure comparative negligence.

Pure and Partial Comparative Negligence

Partial comparative negligence bars a litigant’s recovery if it is determined that the litigant’s own negligence outweighs or, in some states, at least is as serious as the defendant’s negligence.

In the states with pure comparative negligence system, if the percentage of the litigant’s fault in the accident is less than 100%, it plays no role in the right to recover damages, however, the amount of recovered damages will be apportioned based on the percentage of the plaintiff’s fault.

The State of New York has adopted a pure comparative negligence system. For example, a plaintiff had a slip and fall incident on the defendant’s premises and suffered $100,000 in damages. It was determined that plaintiff was 60% negligent and defendant was 40% negligent. That means that plaintiff will still have a right to recover damages even though plaintiff’s negligence was more serious than defendant’s, but he will be able to recover only $40,000 out of $100,000.

Assumption of risk

Another factor a trier of fact may weigh, and which may bar a litigant’s right to recovery, is whether a litigant assumed the risk of damages caused to him by the defendant’s negligence. If a litigant/plaintiff was aware of the risk of an injury/damage and ignored that risk and voluntarily proceeded, he/she may be completely denied recovery.

What to Do if You Have Been Injured on Someone Else’s Premises

If you or a loved one has been injured, contact an attorney to learn more about your options for legal recourse and compensation. The personal injury attorneys at Block O’Toole & Murphy have experience in achieving top results for victims involved in premises liability lawsuits. Notable recoveries include:

• $9,000,000 settlement for a child who was injured when a wall collapsed on him in a Nassau County shopping center
• $7,200,000 settlement for the family of a Brooklyn man who died in an elevator accident because of a power outage and lack of safety features in the elevator
• $7,000,000 settlement for a worker who fell down an elevator shaft at a major food retailer
• $5,850,000 settlement for a woman who was injured when her apartment ceiling collapsed
• $5,500,000 settlement for a Manhattan worker who suffered multiple herniated discs when he was injured in an elevator accident

To speak with an experienced premises liability lawyer today, please call 212-736-5300 or fill out our Contact Form. We serve New York and New Jersey.