Premises liability is a subset of personal injury law and is one of the most common types of claims after car accidents. Any injury that occurs on someone else’s property may come under the principles of premises liability. How your injury claim is handled largely depends on how the the property owner is characterized, and your own status while on the subject property. Because these cases can be difficult to prove, call a Boston personal injury lawyer at Lovenberg & Associates to handle your claim from the outset.
Types of Premises Liability Claims
Injury claims that fall under premises liability are numerous:
- Slip and fall
- Dog bite
- Assault in a business establishment
- Snow and ice accidents
- Inadequate security leading to injury or assault
- Elevator and escalator injuries
- Amusement park rides
- Swimming pool accidents
- Construction site accidents involving the public
These accidents may occur on private as well as on public property such as residences, restaurants, government buildings, parks, grocery stores, bars and nightclubs, hospitals, parking lots or structures, nursing homes, sports arenas, sidewalks, hotels and motels.
Responsible or liable parties include private landowners, construction contractors, municipalities such as the state or local government, and landlords.
Duty of Care and Concept of Notice
Duty of Care
Landowners owe a duty of care to those lawfully on their property to keep their premises safe from hazards or to provide adequate notice. The duty of care is stricter on business owners than on private owners since they invite persons onto their property to purchase goods or services. Private landowners are not expected to conduct inspections regarding their social guests or licensees whom they explicitly or impliedly invited onto their property. Guests, or “licensees,” include mailpersons, firefighters, police, or any other persons who are non-trespassers. However, if private landowners were aware of the hazard and failed to remedy it or to warn their guests, then they could be held liable.
Issue of Notice
In most premises liability cases, other than dog bite cases where strict liability applies, there is the issue of notice or whether the landowner or potentially liable party knew or should have known about the hazard that caused the accident. Notice can be actual or constructive. Actual notice is where the landowner or his/her agent either directly observed the hazard or was made aware of it by another party before the injury occurred. Constructive notice applies when the hazard has existed long enough so that in the exercise of ordinary care, the landowner or agent should have been aware of it.
Constructive notice issues are found in claims involving commercial establishments in most cases. As indicated previously, business owners have a duty to persons coming onto their property, known as invitees, to keep their premises free of hazards or to warn people. This duty of care necessarily includes periodic inspections to uncover potential hazards. For example, grocery store owners should be routinely inspecting their aisles for spilled products. Amusement park owners should regularly service and maintain rides, and inspect the premises for hazards.
It is a question for a jury or judge acting as the trier-of-fact to determine if the business owner had sufficient direct or constructive notice of the hazard and failed to remedy it.
Open and Obvious Hazards
In case of an open and obvious hazard, does the landowner still have a duty to warn those lawfully on their property? Although a person who was injured by the obvious hazard could be held responsible for undertaking the risk despite the obvious danger and breached his or her own standard of reasonable care, the Massachusetts Supreme Judicial Court ruled that this does not relieve the landowner of the duty to fix the hazard. Dos Santos v. Coleta, 81 Mass. Ct. 1 (2013) held that the jury that decided the case should have been instructed that the landowner still had a duty to remedy the hazard where it was foreseeable that the dangerous condition, though blatantly hazardous and obvious, would cause harm to a person lawfully on the premises. In such cases, you can expect a jury to divide responsibility between the claimant and landowner.
Trespassers
Landowners generally have a lesser duty of care toward those unlawfully on their property. This can include persons who may be lawfully present on certain areas of the property but who stray into unauthorized areas that are clearly marked as such.
A trespasser who slips and falls because of a hazard ordinarily has a difficult time proving that he or she was owed a duty of care. There is an exception if the landowner engaged in conduct that was willful and wanton and injured an undiscovered trespasser. This is conduct where the landowner consciously and intentionally injured the individual or acted with reckless indifference to that possibility.
But if the trespasser was discovered, then the landowner has a duty to warn that person of existing hazards. This situation arises where a landowner discovers that persons are routinely crossing his property where he has been carrying on a hazardous practice or has an artificial and dangerous condition on the property that he knows the trespassers are unlikely to become aware of or to appreciate.
Inadequate Security Claims
Another type of premises liability claim may arise where a patron has been injured by another patron in a bar or restaurant, or where the invitee is assaulted in a parking lot. If the patron was injured by another person in the bar or restaurant who was obviously intoxicated or had been observed for a time to be belligerent and hostile and was not removed, then the injured patron may have a claim against the business owner.
If the person was assaulted in a parking lot, then the claim may depend on whether the property owner was aware that previous assaults had occurred in the lot and no measures had been taken to protect persons. This might include a failure to install bright lighting throughout the lot or not having security guards patrolling the area to deter further attacks.
Landlord Property Owner/Manager Liability
A landlord may be liable to a tenant or guest if injured so long as the landlord was responsible for the existence of the hazard. This could include a defective step, lack of a handrail, inadequate lighting, or failure to warn of a hazard. If a tenant notified the landlord of a defective step or faulty lighting and nothing was done for a week or more, this could increase the likelihood of imposing liability. Landlords also have a duty to inspect common areas for hidden dangers and to remedy or warn of their existence.
They also have a duty to remove ice and snow from driveways, common entrances, and walkways. Under the state Sanitary Code, a landlord cannot delegate responsibility to tenants to remove the snow and ice unless the entrance or exit area is exclusive to that one unit. If two separate tenants share a mutual entrance, the landlord cannot insert a lease provision requiring those tenants to keep the area free of ice and snow. In several Massachusetts cities and towns, local ordinances require property owners to clear municipal sidewalks that front their properties or face fines.
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