Updated: Jan 18
If you have been injured on another person’s property due to their negligence, you may have a premises liability claim. It is important to consult a qualified premises liability attorney to review the facts of your case.
The first issue your attorney will review is determining what duty the landowner owed you while you were on the property. The 3 classifications you may fall under are trespasser, invitee, and licensee. The specific classification will help establish what duty the landowner owed you.
A trespasser has the least amount of protection from a landowner’s negligence. Typically, landowners do not have a duty to a trespasser with the exception that a landowner cannot willfully cause injury to the trespasser. If injured while trespassing on another’s property, the individual will most likely not be able to recover. However, there are always exceptions.
One of the exceptions is when the trespasser is a “known trespasser.” A “known trespasser” is a trespasser who often trespasses on property and the landowner has notice of the trespasser. If a landowner allows a hazardous condition to remain on the property which could cause injury to the trespasser, then the landowner can be found liable because he had a duty to provide warning to the trespasser or to fix the hazardous condition in order to prevent the injury.
The second exception to succeed in a premises liability case as a trespasser is if there was a “dangerous instrumentality” on the property. Under the “dangerous instrumentality doctrine,” a landowner can be negligent if he leaves an instrument, appliance, or machine easily accessible to children that has hidden, concealed, or latent dangers. This dangerous instrumentality must be in a location that the landowner has knowledge, or should have known, that the location is in a place where children can be expected to gather. The landowner has a duty to remove the dangerous instrumentality or prevent children’s access to the dangerous instrumentality.
When many people imagine a premises liability case, they often think of a person slipping and falling due to a slippery substance on the floor in a business establishment. The injured party will typically have the classification of an invitee. An invitee is a person that has been invited, either expressly or implied, onto the landowner’s property for the benefit of the landowner. The landowner then has a duty to warn of a dangerous condition existing on the premises or to make the dangerous condition safe to prevent injury.
The most common pitfall in proving liability when the injured party is an invitee is providing evidence that the landowner had notice, or should have known, that a dangerous condition existed on the property. Additionally, a landowner does not have a duty to warn when the dangerous condition is open and obvious and the invitee knew, or should have known, about the dangerous condition.
However, the status of invitee is not absolute and can change to trespasser if the invitee enters an area of the property which was not included in the invitation to enter. For example, if you are shopping at Target, you are considered an invitee while shopping in the parts of the store open to the public. But, if you decide to enter an “employee only” designated area, then your status will change from invitee to trespasser because the invitation did not extend to the “employee only” area. The landowner’s duty to protect you from injury on the premises will then change to the duties owed to a trespasser.
Licensees and invitees are often confused with one another, but a licensee is provided slight less protection than an invitee. A licensee is a person who enters a landowner’s property with invitation, and at the licensee’s discretion, without benefit to the landowner. An example of a licensee is a guest invited to the landowner’s house for a party. On its face, the person should fall under invitee because the person was invited, the main difference is the landowner is not receiving benefit from the person attending the party outside of normal socializing.
Under the invitee classification, the person is providing a direct benefit to the landowner (i.e. a person shopping in a store helps the store profit). Under the licensee classification, the landowner only has a duty to protect the licensee from injury if the landowner knew of a hazardous condition on the property that poses an unreasonable risk of harm and the licensee could not be expected to recognize the dangerous condition. Then the landowner must warn or eliminate the hazardous condition.
WHAT SHOULD YOU DO IF YOU HAVE BEEN INJURED?
Due to difficulties proving liability in premises liability cases, it is important to take action immediately after being injured on another’s property. Here are steps you should take:
1. Take a moment to collect yourself
Many times, if a person is injured in a public setting (such as a slip and fall in a store) the person immediately wants to remove themselves from the area because of embarrassment. Falling, or being injured, due to a landowner’s negligence is nothing to feel embarrassed about. It is important to take a moment to make sure you are okay before making sudden movements. Your injuries may not be readily apparent due to shock from the occurrence.
2. Report the Incident
This step is one of the most important because it helps create a record of your injury and it places pressure on the landowner, or his agent, to correct the hazardous condition. Make sure you file an incident report and receive a copy of the incident report for your own records.
3. Take Photos