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Premises Liability

The old “slip and fall” case. X is onĀ  Y’s property and slips on a patch of ice, falls backward and hurts his back, shoulder and arm. The is a common lawsuit and has spawned a seemingly innumerable supply of lawyer jokes across the U.S. So common, in fact, that the City of St. Louis City Court System has approved forms on its website for use by the Plaintiff(s) and Defendant(s) in such cases. See:

http://www.courts.mo.gov/hosted/circuit22/CourtFormsGeneral.htm

Let’s talk about why in the above example Y could be liable for the injury (and in some cases he would not be). Most jurisdictions very generally divide up premises liability into two questions: first, what is the “status” of the individual injured on the property? Second, what was the nature of the “defect” in the property and what did the property owner do about it? For purposes of this post, we’re concentrating more on the first question.

Traditionally, the law has taken a tripartite approach to the injured individual’s “status” : such person is either an invitee, licensee, or trespasser.

Generally, an invitee is a visitor who enters premises or property of a landowner for a business/commercial benefit to the landowners. Think of a salesman coming to your house to sell you property, or you walking onto a car dealer’s lot to look at cars. In both circumstances, the person entering the property is an invitee. With invitees, the owner of the premises has the highest duty of care (see previous post on “Negligence” for this) to protect the individual on his or her property from any dangerous conditions therein and give any advance warning. There’s a reason why just about every time you’re in the grocery store there are little signs pointing out what spot are wet on the ground. The grocery stores have a responsibility to do this. The reasoning goes that because they hold out their property to the general public, they should warn people of dangers on the property and take affirmative steps to correct them.

A licensee is similar to an invitee, except that the person on another’s property is not there for a business/commercial purpose. The best example is when you have guests over for a dinner party, the guests are licensees. Generally, if the licensee is injured by something on the premises, the property owners is only liable if 1) he/she knew of a dangerous condition and should have expected the licensee to run into it, or 2) there was no fair advance warning of the dangerous condition.

Lastly, there is the trespasser. As everyone knows, a trespasser is someone who enters property without any sort of permission. In this case, the landowner owes almost no duty of care to the trespasser.

Despite the above distinctions, premises liability cases can often be difficult. For one, it is sometimes easy to figure out whether a person is an invitee, licensee or trespasser. Some jurisdictions often blur the lines between these three or even have sub-categories (e.g., “discovered trespasser,” “undiscovered trespasser,” etc.). And then there is often the question about what is the appropriate standard of care the landowner owes to the person.

One last note: for a landowner, it is advisable to obtain good property insurance. Premises liability cases can often result in large liability against the landowner. Knowing this, even I have a large policy protecting my law office with property and casualty insurance.

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