Premises Liability Legal Strategies for Business Owners

To facilitate better control of premises liability — one of the most pervasive types of everyday liability risk for business owners — it’s important to be aware of typical exposures. To give companies insight into their potential exposures, we invited two partners from the law firm Hennessy & Roach, P.C. to join our March Risk Control Webinar.

Jeanne Hamilton and Clay Fielder of Hennessy & Roach discussed the most common kinds of premises liability claims, key elements plaintiffs must prove to successfully prosecute a claim, and common defenses. While this does not constitute legal advice for any specific organization, the concepts can serve as a starting point to help business owners understand premises liability and related risk control strategies.

Premises Liability Basics

Premises liability refers to the responsibility a person or entity owes to another person injured or killed on their commercial, private, or public property. Laws vary by state and the webinar focused on legal concepts that apply in most. Hamilton — the Co-Chair of Hennessy & Roach’s Transportation and Logistics Practices Group and a former Judge in Indiana State Court who has practiced law for 31 years — explained the common types of premises liability cases:

• Trips/slips and falls (e.g., on snow or ice)
• Animal attacks (e.g., dog bites)
• Fires
• Negligent security: The absence of a security professional or actions of overzealous security personnel who caused a plaintiff’s injuries, e.g., a bouncer

Generally, plaintiffs must prove four elements to successfully prosecute a premises liability claim.

Element 1: Property Ownership or Control

The plaintiff must prove that the defendant was the property owner or controller at the time of the injury. A business owner who leases property might still bear premises liability.

Element 2: Duty of Care

The defendant owes the plaintiff (a visitor to the property) a duty of care to keep the premises in a reasonably safe condition. Many states require the property owner to exercise reasonable care in ownership and maintenance of the property with respect to all persons who might enter. Other states still apply an old rule that can limit the property owner’s duties, depending on the visitor’s legal status. Fielder, who has been practicing law in the Kansas City area for over 20 years and is Co-Chairperson of Hennessy & Roach’s Retail, Restaurant & Hospitality Group, went over the three categories of visitors:

1. Invitees, who have the property owner’s express or implied permission to enter the property (e.g., friends, relatives, and neighbors). The property owner has traditionally owed invitees a duty of reasonable care.
2. Licensees, who have the property owner’s express or implied permission to enter the property for their own purposes (e.g., salespeople). The property owner has traditionally owed licensees a lesser duty only to warn a licensee of dangerous conditions that create an unreasonable risk of harm if the property owner knows about the condition and the licensee is not likely to be able to discover it.
3. Trespassers, who are not authorized to be on the property. Traditionally, property owners have owed no duty to trespassers unless they are children, in which case the property owner owes a duty to exercise reasonable care to avoid a reasonably foreseeable risk of harm by artificial conditions on the land (e.g., swimming pools). The property owner may not use intentional harm(e.g., a “booby trap”) to repel a trespasser. They may use “justifiable force” (e.g., a barbed wire fence), however. The owner owes trespassers a duty of care when they know of frequent trespassing on their land; sometimes even a “beware of dog” sign is sufficient.

Fielder pointed out during the question-and-answer segment that a visitor’s legal status can change during a visit. For example, an invitee who refuses to leave the premises after being asked to do so would have their legal status changed to a trespasser.

The partners were asked about best practices for construction general contractors. Hamilton recommended they take reasonable precautions such as proper supervision, training, and installing signage and controls such as fencing. Fielder added that property owners should consider bringing in a third party to perform a risk assessment to help them identify potential hazards.

Element 3: Breach of Duty

The plaintiff must prove that the defendant breached the duty of care. The plaintiff can use evidence such as their medical records, company policies and procedures, maintenance records, and statements from witnesses. Fielder pointed out that maintenance records might include the use of a snow removal service. Written and signed statements from witnesses to an accident, and their contact information, can aid the defense years down the road, depending on the state’s statute of limitations, Fielder said.

Element 4: Causation

The plaintiff must prove causation, i.e., whatever dangerous condition existed on the property at the time of the incident was substantially responsible for their injuries. Even if the defendant was negligent, they might escape liability if they can prove that the plaintiff’s actions or inactions caused the accident.

Damages

Plaintiffs who prove these four elements of a claim may recover compensation for damages caused by the defendant’s negligence. There are two categories of damages:

• Economic: These include medical expenses and lost wages.
• Non-Economic, i.e., pain and suffering: Damages such as a disability cannot be directly quantified with financial records.

Defenses Against Claims

Hamilton and Fielder outlined five common defenses companies can use when facing premises liability claims:

No. 1: The property owner had no actual or constructive knowledge of the peril that caused the injury. Generally, the owner must exercise reasonable care to discover a hazard. Also, the owner is likely to have constructive knowledge if the hazard existed for a long time and caused injuries to others before the accident resulting in the current claim.

No. 2: The hazard was open and obvious, i.e., an average person with ordinary intelligence would have been able to discover the danger and appreciate the risk presented. Hamilton gave a hypothetical example that someone in her area of northern Indiana should be aware that snowstorms are fairly common there and walk cautiously in one to prevent a slip and fall.

No. 3: In states that adhere to the comparative negligence doctrine, the plaintiff might be at comparative fault and share fault with the defendant for an accident. The plaintiff is responsible for not engaging in reckless behavior or intentionally ignoring information about potential hazards. In the northern Indiana snowstorm example above, a plaintiff might share fault if they did not wear appropriate shoes for the weather, were talking on their cell phone when they slipped, or did not hold onto a railing when descending a flight of stairs.

No. 4: Liability for injuries caused by third-party negligence varies from state to state. However, property owners generally have no duty to protect against the negligent acts of third parties unless the acts were foreseeable or criminal.

No. 5: If the defendant can prove they did not own or control the property when the accident occurred, they will not be held liable.

About the Webinar

This presentation was part of Captive Resources’ Risk Control Webinar Series — regular installments of webinars to educate the group captive members we work with on topics like workplace safety, organizational leadership, and company performance. The thoughts and opinions expressed in these webinars are those of the presenters and do not necessarily reflect Captive Resources’ positions on any of the above topics.