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Premises Liability

Premises liability is the legal duty a property owner has toward those who come onto their property. It includes the reciprocal duty that visitors have toward the property owner. For legal purposes, the owner’s duty can extend to management companies and even contractors hired to work on the property.

A property owner’s duty of care is clear. The owner, their agents, and employees must keep the property safe for visitors. That duty is breached when the owner allows dangerous conditions to exist on the premises. When a visitor is injured because of those conditions, they can file a premises liability claim against the property owner.

Visitor Types
Those who enter onto property fall into three main categories:

Invitees: Someone who enters onto property to conduct business at the request of the owner is considered an invitee. This includes customers, contractors, salespeople, repairmen, etc. An invitee might be someone shopping at a store, or an appliance repairman fixing a homeowner’s dishwasher.

Licensees: Someone invited onto property by the owner for social purposes is considered a licensee. This includes social visitors who come to chat, relax, or otherwise enjoy themselves. Licensees typically includes neighbors, friends, and family.

Trespassers: A trespasser enters a property without invitation. They are neither an invitee nor licensee. A trespasser knows (or should know) they were not invited. In most cases, a property owner’s duty of care does not extend to trespassers. Therefore, trespassers have no legal basis to file a claim if injured on the property.

Exception to the Trespasser Rule: If a property owner purposely causes excessive injuries to a trespasser, the owner may be held civilly and even criminally liable. A landowner cannot willfully or recklessly make his property dangerous, especially if the intent is to cause serious bodily harm or death.

Reasonable Efforts and Foreseeable Harm
A property owner’s duty of care to protect visitors is not absolute. The owner’s responsibility is limited to making reasonable efforts to avoid foreseeable harm. This means that the owner must make the property safe from probable dangers, not all dangers.

Reasonable business safety procedures might include:

  • Immediately repairing or removing hazards as soon as they are discovered
  • Avoiding using extension cords in public areas
  • Having proper trash containers that are emptied often to avoid overflow
  • Maintaining flooring, restrooms, aisles, fitting rooms, shelving, or walkways at regular intervals
  • Using industry standard cleaning products
  • Regularly inspecting and maintaining elevators and escalators
  • Implementing adequate security measures, particularly in areas known for rising criminal activity (measures may include surveillance cameras, increased lighting in parking areas, and hiring security personnel)
  • Regularly maintenance of outdoor areas, including sidewalks, children’s play areas, parking lots, and lighting
  • Conducting periodic inspections for hazards
  • Conducting periodic employee training about safety measures, reporting hazardous conditions, and assisting ill or injured customers

To win a premises liability claim, the cause of injury must have been foreseeable by the property owner. If the danger was known and the owner did nothing about it, they can be held liable for any resulting injuries.

What to Do When an Incident Occurs
You should have clear policies and procedures in place for managing injuries that occur on your premises, whether to a visitor or an employee. What you or your employees do and say after an incident will make a big impact on any subsequent injury claims made against the company.

Offer Medical Attention: Administer first aid. If the injury appears serious, or the injured person or their companion asks for emergency medical services, do not hesitate to call an ambulance. Notify police for incidents involving physical assault, rape, or vehicle accidents, such as a pedestrian hit in the parking lot. Assist employees in calling for help. Post emergency information cards near every telephone in your business with phone numbers for emergency services (including any numbers that must be dialed to reach an outside line) and the street address for the building.

Gather Documentation: Use an incident report form to gather the full name, address, phone numbers, and other contact information for the injured party and any witnesses, and to document the date, time, and circumstances of the incident.

Secure Photographic Evidence: Preserve any footage captured by surveillance or security cameras leading up to and including the incident. You can take photographs of the location where the incident occurred, but you must ask permission to photograph the injured person or their companions.

Promptly Notify Insurance Company: Regardless of the circumstances, you must put your liability carrier on notice of a potential claim.

Follow Up: Within 24 hours of the incident, make a courtesy call to the injured person. Let them know you are concerned about their well-being and ask if medical care was needed.

Beware of Admissions Against Interest: Watch what you say. Don’t apologize, make excuses for the circumstances of the incident, or confirm that the person looked in bad shape. Even polite comments can be taken as an admission of liability for the person’s damages. If asked, say the insurance company will be able to answer any questions.

Preserve Evidence: Preserve any evidence, such as a broken piece of machinery, tools, a broken tile, or a torn floor mat. You must also preserve any notes, emails, reports, maintenance records, and any other communication regarding the incident. Never hide or destroy evidence. You don’t have to hand it over to the injured person without a subpoena, but you must keep it as is.

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