Reduce Exposure to Personal Injury Lawsuits

To maximize your property’s value and profit, limiting premises liability should be a priority for you—and you should communicate this to your property manager, who’s most likely to hear about and react to injuries before you do. To make sure your property manager understands the importance of preventing personal injuries and reacting to them appropriately when they do occur, make sure your property manager:

Understands what premises liability is. Explain that premises liabilityis the body of law that makes a property owner responsible for certain injuries suffered by visitors to the premises. In general, to win a premises liability lawsuit, the injured visitor has to prove that the owner of the premises created a dangerous condition, didn’t properly maintain the property, or knew that the premises weren’t safe and didn’t warn people of the lack of safety.

The types of incidents that give rise to premises liability claims can vary, but slip-and-fall accidents are the most common. Premises liability lawsuits can involve any type of injury suffered on, or sometimes even around, an owner’s property.

Understands how courts determine liability. The extent of property owner liability varies, based on state law. For instance, some states resolve the issue of liability by focusing on the injured visitor’s status, while other states determine liability by focusing on the property’s condition and the actions of the owner and injured visitor.

Status. The legal term “status” describes the injured visitor’s presence on the premises, and helps the court assess the property owner’s duty to that injured visitor. In lawsuits where the court uses the visitor’s status to determine owner liability, ascertaining the injured visitor’s status is the first order of business. The injured visitor will fall into one of three status categories: invitee, licensee, or trespasser.

> Invitee. An invitee is an individual, such as a client or customer, who’s invited onto the premises by the owner or tenant. This invitation confers a duty on the owner to take reasonable steps to make the premises safe. The law defines “reasonable” as what a person of average judgment and intelligence would do in the same circumstance.

In general, the owner must repair or correct any known dangers on the premises, and is responsible for inspecting and finding any unknown hazards that may exist in areas that the invitee would or could access.

> Licensee. A licensee is someone who enters the property for his own interest and is there with the owner’s consent. A social guest, for example, is a licensee. The owner has a lesser duty to a licensee than to an invitee. The owner has no duty to inspect and find unknown hazards, but if known dangerous conditions exist on the premises, the owner must take reasonable steps to correct the dangerous condition or at least warn the licensee.

> Trespasser. A trespasser is a person who enters the premises, by mistake or intentionally, without permission from the property owner. Property owners must understand that, while they have no duty to make the premises safe for a trespasser, they do have a duty not to intentionally injure a trespasser whose presence on the premises is known or reasonably should be known. For example, if the owner knows that it has recurring trespassers on the premises, the owner can be liable for injuries caused by any hazardous conditions created or maintained on the premises if: (1) the hazard could cause serious bodily harm or death; (2) the hazard is created or maintained by the owner; or (3) the owner fails to make reasonable efforts to notify trespassers of the hazardous conditions and the risks involved with entering the premises.

There’s a very important exception to the rule on trespassers where children are involved—the “attractive nuisance doctrine.” Under the attractive nuisance doctrine, a property owner may be held liable for injuries to children trespassing on the premises if: (1) the place where the hazardous condition exists is a place where the owner knows, or should know, that children are likely to trespass; (2) the owner knows or should know that the hazardous condition could cause serious bodily harm or death to children; (3) children are unable to understand the danger of approaching that hazardous condition; (4) maintaining the condition serves a purpose for the owner, and the burden of eliminating the hazard is small in comparison to the risk to children; and (5) the owner fails to take reasonable steps to eliminate the hazard or protect the children from sustaining injuries.

Property condition, actions. When courts look at the condition of the property and the actions of the owner and visitor, the courts treat invitees and licensees the same and require that the owner make reasonable efforts to ensure their safety while on the premises. But under these circumstances, the owner has no duty to provide the same level of care for trespassers.

To meet the reasonable efforts standard required by the courts, the owner has an ongoing duty to inspect the property, locate hazards, and either fix them or post appropriate warnings. If the owner doesn’t meet that standard, it may be liable.

Keeps interior and exterior walkways maintained. This may seem like a no-brainer, but many lawsuits are generated from poorly maintained walkways. Something really minor and inexpensive to address, such as a crack in the sidewalk or a small spill, could end up costing you.

Tell your property manager to assign specific staff members with walkway monitoring responsibility. Also, set time intervals between inspections and follow them. By simply implementing a consistent, organized inspection schedule, you’ll eliminate a significant amount of risk and stay in front of potentially hazardous conditions.

Maintains sufficient general liability insurance. To make sure you’re adequately covered, advise your property manager to consult a professional insurance agent when buying general liability insurance. The agent will be able to properly assess the type of property you have and help you determine how much insurance you need. Also, ask your property manager to meet with your insurance agent to review your policies annually.

Provides adequate security on premises. Premises liability lawsuits are not just limited to slips-and-falls. Tell your property manager to regularly assess the level of security you’re providing, in light of local incidents and potential new threats. Workplace violence also must be considered when attempting to limit premises liability.