Negligence
Premises liability cases generally proceed under the theory that the defendant (the landowner or occupier) was negligent. To establish negligence, an injurd plaintiff must establish the existence of a duty by the defendant to conform to a specific standard of conduct; breach of that duty by the defendant; that this breach was the actual and proximate cause of the plaintiff's injury; and that the plaintiff was injured.

Property Owner’s Legal Duty to Prevent Injury
In many states, property owners and possessors owe different degrees of responsibility, or duties, to people who come onto their property, depending on how such people are categorized. The law recognizes three main categories of people who might be on someone else's property: invitees, licensees, and trespassers. In states that still distinguish among these categories of people, the legal duty owed to each category is different. It is important to ask an attorney whether these categories and standards of care apply in your state.

Invitees - An invitee is a person who is invited onto property for business reasons, and would include customers of a retail store and job applicants. Property owners owe the highest degree of care to invitees to make sure they are safe from dangers on their property. Under this standard, a property owner not only has a duty to repair and correct known dangers, he also has a duty to reasonably inspect for, discover, and correct unknown hazards in those areas of the premises to which an invitee might have access.
These obligations might simply mean that the property owner or possessor (a business occupying the property) has a duty to take reasonable steps to ensure that the environment is safe for patrons. While there is no precise way to measure what is reasonable, the law defines "reasonable" as what a person of ordinary intelligence and judgment would do under the same circumstances. If a premises liability case goes to trial, it is left up to a jury to decide what is reasonable under the circumstances.
By way of example, it might be reasonable to expect a business owner to conduct regular inspections, maintain, and clean stairwells in his/her property to make sure they are safe. However, it would probably be considered unreasonable to expect a business owner to keep watch all day long to make sure nothing is spilled or broken in the stairwells. 

Licensees - A licensee is someone allowed on a premises for social purposes, or for solely their own purposes. Property owners are required to ensure that conditions are safe for licensees, but the level of care owed licensees is lower than that owed to invitees. A property owner is only required to take reasonable care to protect licensees from any known hazards on the property, and does not have a duty to inspect for and discover unknown dangers, as he/she does with invitees.

Trespassers - A trespasser is someone who is not authorized to be on the property at issue. Landowners are not obligated to protect trespassers who enter their property without permission, but they cannot willfully injure them. Also, if an owner knows, or should know, that there are frequent trespassers on his/her property, he will be liable for their injuries caused by an unsafe condition on the property if: 1) the condition is one the owner created or maintained; 2) the condition was likely to cause death or serious bodily harm; 3) the condition was such that the owner had reason to believe trespassers would not discover it; and, 4) the owner failed to exercise reasonable care to warn trespassers of the condition and the risk presented.

Trespassing children - A different rule applies where trespassing children are involved. In the case of children who wander onto a property without authorization, property owners do have a duty to ensure that their property is safe. The logic behind this exception is that children are sometimes naive to dangers on property, and could in fact be lured to dangerous conditions such as a swimming pool, an abandoned well, or heavy machinery. These potential hazards are referred to as "attractive nuisances." Thus, a property owner has a duty to inspect his/her property to see if there are any potentially dangerous conditions that might attract children and, if there are, act immediately to correct the unsafe condition(s). A property owner may be liable for an injury to a trespassing child if he/she knew, or should have known, young children were likely to trespass in the area of a dangerous condition on the property that involved an unreasonable risk of bodily harm to children, of which risk young children would not be aware, and when the utility of the condition is small compared to the risk it represents.
Some jurisdictions in the United States have rejected the common law classes of entrants as determinative of liability. Of these, some have adopted a rule that provides that an owner or occupier of land has a duty of reasonable care under all circumstances, and the status of the entrant is merely a relevant factor in determining whether the injury was foreseeable and the landowner negligent. In addition, in some states, there are statutes that govern the standard of care owed by certain landowners or occupiers to certain classes of entrants.

Governmental Immunity in Premises Liability Cases
One of the most common premises liability situations occurs when a member of the public is injured by a defect on a public sidewalk or roadway. In these cases, it would seem clear that the governmental is responsible for maintaining the road or walkway should be held legally responsible for the person's injuries. Traditionally, however, governmental entities enjoyed protection from suit under the doctrine of sovereign immunity, which provides the government complete immunity from suit. State and federal governments have reduced this broad sovereign immunity over the years by passing laws that limit or reduce the immunity of government entities in certain situations.
These laws vary from state to state, but most are modeled on the Federal Tort Claims Act (FTCA), which is a federal law that waives the sovereign immunity of the federal government under certain circumstances and allows it to be sued.
The Federal Tort Claims Act (28 U.S.C.A. §1346, 2674 et seq.) waives the immunity of the United States from tort liability for the acts of its officers and employees. Generally, a person who is hurt by a dangerous condition on federal property can recover damages from the United States in a premises liability suit if he or she can establish that the federal government’s negligence was caused by a government employee acting within the scope of his or her authority; that a duty was owed to the injured party; and the that duty was breached by a hazardous condition about which the government knew or should have known. There is an exception to the allowance of claims under the FTCA known as the discretionary-function exception. This exception expressly excludes any claim based on an act or omission of a government employee who exercised due care in the execution of a statute or regulation. It also excludes claims based on the performance of, or failure to perform, a discretionary function or duty on the part of a federal agency or government employee, regardless of whether discretion was abused.

Conclusion
If you have been injured on someone else's property, you should obtain advice about your legal options. An experienced personal injury litigation attorney can advise you about the rules that apply to your case. 

Questions and Answers
Q: If someone falls and hurts herself on a hotel's premises, does she have any recourse against the hotel?
A: A hotel might be liable if someone slips or trips and fall on hotel premises. For example, if someone slips on spilled food or drink in a hotel bar or restaurant, snow and ice that has not been cleared from a walkway, or on wet tile floors or other slick surfaces, the hotel might be liable if it knew or should have known about the danger and failed to warn visitors or clean it up. A hotel could also be liable if someone is injured because of a design or building flaw (such as steps that are too steep), or due to the hotel's failure to light an area properly. 

Q: Can a hotel be held responsible if someone is the victim of a crime at or near the hotel?
A: A hotel usually cannot be held liable for crimes committed on or near the hotel unless it should have anticipated the crime (for example, the hotel is in a very high crime area) and could have prevented it, either by providing sufficient warnings or taking better security measures. In such situations, the hotel's general duty to warn you about dangerous conditions may extend to a duty to warn about crime in or around the hotel. Furthermore, the hotel's actions -- such as failure to install proper locks on windows and doors, provide adequate lighting in parking areas or take adequate measures to ensure that passkeys are not used by criminals -- may make the hotel at least partially liable. 

Q: Can a college or school be held liable for an attack on a student that occurred on campus?
A: A student attacked on a college campus might have a negligence action against the college. In a developing area of premises liability law, courts have found entities such as universities, motels, convenience stores and shopping malls liable for attacks because they did not exercise reasonable care in preventing victims from being harmed by a third person. In general, a hotel must provide adequate security and not permit people to loiter. In a case involving a college campus, a court would look at the facts and ask whether similar attacks had occurred previously in the same area. If so, the court would ask what security precautions the college had taken, and might find that the steps taken were insufficient, holding the college liable. 

Q: If someone falls on a broken piece of a city sidewalk and is injured, can they sue the city?
A: In many states, statutes giving local governmental entities immunity prohibit recovery in many kinds of cases against cities or towns. If there is not such a statute or ordinance in place, however, someone may have a case against the city. Municipalities have a duty to keep streets and sidewalks in repair. An injured party might have a successful case against the city if he or she can show that it failed to maintain the sidewalk properly. There are very important deadlines and procedural requirements for bringing such claims, so you may want to speak with an attorney if you believe that a municipality is responsible for your injuries. 

Q: Can someone attacked after withdrawing money from an automated teller machine (ATM) hold the bank responsible for the attack?
A: Under the legal theory of premises liability, customers have sued banks for failing to protect them from assault at ATMs. While in the past banks had no duty to provide security against such crimes, such a duty has been recognized in a number of cases in recent years. In such a case, a judge or jury would determine if there were past attacks, and if a likelihood of a crime was foreseeable. If so, they may hold that the bank had a duty to protect people using that machine, and find the bank liable.
 
Q: Do building owners have to have safety precautions, such as sprinklers and posted escape routes, in case of fires?
A: Building owners and/or management are required to exercise reasonable care to prevent injuries in case of fire, and should help people on their properties escape, and these safeguards would probably include having sprinklers and posted escape routes. 
Q: Who is liable if a person is injured while walking on a public sidewalk next to a construction site, after tripping over a brick from the site?
A: In some circumstances, the injured person will be able to recover damages from the construction company, which has a duty to take reasonable steps to keep public sidewalks near its construction site free from bricks and other debris. If the company fails to remove such obstructions and someone trips and falls, the company may be liable. Construction companies should also tell pedestrians they could get injured if they stray from the sidewalk. Posting a sign is usually not enough. If a company fails to place barriers and warning lamps by a building pit, for example, it may be responsible if anyone falls into it and gets injured.
 
Q: What if someone gets injured while at the home of a neighbor, who invited him or her there for a party?
A: Social guests are sometimes able to recover from their hosts, depending on how their injuries happened. Homeowners must tell their guests about, or correct, any dangerous conditions that guests are unlikely to recognize. For example, if an injury was caused when a guest tripped on a throw rug, he or she may be able to recover if he/she could prove that the host knew other people had tripped over it and the guest was unlikely to realize its danger. The host probably should have warned guests about it, removed it during the party, or secured it to the floor with tape or tacks.


                                 COOK LAW FIRM
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PREMISES LIABILITY
 AN OVERVIEW


SLIP/ FALL AND DEFECTIVE PREMISES

Every year, many people are hurt while in someone else's home or place of business. Premises liability is the area of the law that establishes guidelines regarding duties that a property owner or occupier has to protect entrants from dangerous conditions or defects on the property.

People may be injured on a flight of stairs; on a patch of ice or snow; by a building defect, or by the intentional criminal act of a third party. Generally, the law provides that property owners must keep their premises reasonably safe for people who are on their property. 
© 2008 by Cook Law Firm. All rights reserved.
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