PREMISES LIABILITY LAW AND INJURIES

Premises liability cases address the legal duty of property owners.

Many scenarios fall under premises liability. A store customer opens a cooling unit to reach for an item and a heavy door slams into her head. A shopping cart speeds along the floor, striking a customer.

A homeowner, legally burning brush, walks away and a neighbor child stumbles onto hot coals, sustaining severe burns. Pool injuries can present premises liability issues. Slip and fall accidents are addressed in another article.

The Duty of Property Owners

Landowners must act reasonably in maintaining property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk. Failure to do so may result in an injury and a subsequent lawsuit from the victim.

What Does That Mean?

The fact of an injury on a property doesn’t automatically make the property owner liable for the injury. The injured person has a burden to prove that those in control of the property did something rising to the level of negligence.

Was the injury foreseeable? The traditional negligence test holds that if the defendant could not reasonably foresee an injury, there’s no liability. But, where a potential harm is foreseeable, the premises operator faces a duty to take reasonable precautions.

A reasonable precaution exists where the burden of taking the precaution is low in comparison to the gravity of the harm.

An example would be where it would be relatively easy to cover up exposed electrical wires that could cause an electrocution. Here, the burden of taking the precaution is low compared to the gravity of the harm. This is a reasonable precaution.

The test of reasonable care under all circumstances applies to both owners and occupiers of property in maintaining property.

Notice

Where a specific danger causes an injury, in order to recover the injured person must prove that those in control either knew or should have known of the danger. For example if the electrical wires in the above example were exposed for a period of time out in the open, the property owner is more likely to be held liable. If the wires were cut by a customer, an injury occurs shortly after with no opportunity for notice, liability is less likely.

Premises Liability Law: State Law

Procedural requirements vary widely under the laws of each state. Consult with an attorney right away to comply with mandatory notice requirements and other hurdles that can end a claim if not handled properly in a timely manner.

The above general liability analysis is substantially similar to the law in many states, but is specifically derived from cases in Massachusetts and New Hampshire, the two states in which I am licensed.

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