Any business that owns real estate of any kind can be faced with the issue of whether or not the business is liable for injuries a person receives while on the business’ property. Although most business owners think of premises liability primarily in the context of a “slip and fall” injury to a potential customer, premises liability is much broader. Understanding what injuries a business will be held liable for is a crucial step in not only determining how much to spend protecting against possible injuries, but in determining the appropriate amount of liability insurance.
What Injuries Can a Business Be Held Liable For?
A business will be held liable for injuries that result from the business’ failure to exercise the amount of care that is necessary under the circumstances, an expectation known as the business’ “standard of care.” If a business has failed to meet the standard of care and the injury would have been avoided if the business met the requisite standard of care, the business may be liable in a civil negligence lawsuit. Determining whether a business has failed to exercise the standard of care is a three part inquiry. The elements of this inquiry are:
- Whether the injury occurred on or off the business premises.
- The legal status of the injured party at the time of the injury. Often the most crucial of the three steps, it is necessary to determine whether a person is an undiscovered trespasser, discovered trespasser, licensee, or invitee.
- The requirements of the appropriate standard of care. Specifically, the requirements of the standard of care articulate the types of hazard the business is responsible for protecting against.
Where Did the Injury Occur?
Not surprisingly, a business owes a far higher duty of care to people on the business’ premises than it owes to people who are not on the business’ premises. As a general rule, a business is not responsible, at least under causes of action stemming from the business’ status as a landowner, for injuries that do not occur on the business’ property. This general rule is subject to the following exceptions:
- A business is liable for damage caused by any decaying or decayed trees that are located so close to sidewalks or streets that the business could foresee the potential for the trees to cause an injury to someone on the sidewalk or street and the tree does in fact cause such an injury.
- A business is liable for any damage caused to someone passing buy his land if the damage is caused by a dangerous condition on the land and the business did not take steps to warn or protect the injured party of the condition. For example, if a person is digging a whole near the edge of their property, they must take steps to keep passers-by from falling into the hole.
- If an artificial condition (described in greater detail below) on the business’ property causes a dangerous condition on land immediately abutting the property, a business can be held liable for injuries resulting from the unreasonable dangerous condition. For example, if water draining off the business’ storefront causes ice on the public sidewalk, the business may be liable for the buildings drainage causing a dangerous condition, even though the business isn’t liable for the existence of the ice itself (since the condition is not on the business’ premises.
Absent one of these exceptions, a business is not liable for injuries that occur off of the business’ property.
Legal Status of the Injured Party
Assuming an injury occurred on the business’ property, determining the business’ standard of care requires a determination of the person’s status on the property. This is because people of different statuses are entitled to different protections under the law. A person on the business’ property can have one of four statuses:
- Undiscovered Trespasser: A trespasser is a party that goes onto the business’ property without the business’ permission. If the business is not aware that people are trespassing on the business’ property, the trespassers are undiscovered. A trespasser is NOT an undiscovered trespasser simply because the business is not aware this specific individual is illegally coming onto the property. If a business is aware that trespassers are coming onto the property in the manner in which the injured trespasser came onto the property, the trespasser is a discovered trespasser.
- Discovered Trespasser: A discovered trespasser is a person who comes onto the business’ land without the business’ permission. What makes a discovered trespasser different than an undiscovered trespasser is that the landowner is aware that the trespasser or other trespassers are coming onto the property without the business’ permission. A trespasser is “discovered” when the business notices facts that would lead a reasonable owner to know someone is trespassing.
- Licensee: A licensee is a person who enters onto the business’ land for their own purposes but with the business’ permission. The business’ permission can be express or implied. The most common licensees that businesses will encounter are solicitors. Social guests, such as the owners of rival businesses or members of a joint venture who meet on the business’ premises for social purposes are also considered licensees.
- Invitees: Invitees are people who enter the business’ property for the business’ purposes. But another way, they are people who enter onto the business’ property in response to an express or implied invitation, excluding social guests. For most businesses, invitees will be limited to two groups: people who enter for the purposes of viewing, using, purchasing or considering the business’ services (“customers”) and people who are providing services to the business (“suppliers”). Customers and suppliers can convert into licensees or trespassers if they exceed the scope of their invitation, for example by a delivery person going into a part of the business’ land which is unrelated to delivering products.
The Standard of Care and Its Requirements
Once a person has been categorized as an undiscovered trespasser, a discovered trespasser, a licensee, or an invitee, the standard of care can be determined. The standard of care establishes what the business is required to do to protect people on the business’ property. The standard of care requirements are:
- Undiscovered Trespasser: Businesses do not owe ANY duty of care to undiscovered trespassers. This means that the business does not have to take any actions to make the business’ property safe for undiscovered trespassers. The business also does not have to search for trespassers or attempt to learn if people are trespassing on the business’ property. If a business is not aware of trespassers and the trespasser is injured, the business is not liable for the trespasser’s injury.
- Discovered Trespasser: The business has a duty to warn a discovered trespasser of any artificial conditions on the property which can either cause the trespasser death or serious bodily injury. An artificial condition is any condition which is not a natural condition. Natural conditions are conditions that existed on the land without human alteration. All structures built on land are “artificial conditions.”
- Licensee: The business has a responsibility to warn licensees of any dangerous conditions the business knows of if the condition creates an “unreasonable risk of harm.” The owner does NOT have to inspect for defects. The owner also does not have to fix any dangerous conditions he discovers.
- Invitees: The business has a duty to both warn of any dangerous conditions the business knows of and to regularly make a reasonable inspection of the property to determine whether any dangerous conditions exist. This standard is often referred to as a “general duty of reasonable care.” If a warning is insufficient to eliminate the risk, the business is also responsible for repairing the dangerous condition. There is no duty to warn or repair if the condition is so obvious that an ordinary person would notice the condition and be aware it is dangerous. As a practical matter, businesses will be held liable to invitees for damages resulting from any non-dangerous activity that a reasonable inspection would have discovered. This means the business will be liable even if it regularly conducts inspections and the condition occurred after the last inspection.
Legal Disclaimer
This website provides information addressing legal topics of interest to the general reader. You should not consider this information designed or adequate to meet any of your particular legal needs, concerns or inquiries. You should consult with a lawyer licensed to practice law in the jurisdiction appropriate to your legal situation to assess your situation and provide you with appropriate legal advice.