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Premises liability is the liability for a property owner (whether it be private or public property) for certain acts that occur on that property. Premises liability cases may involve injuries suffered due to a slip and fall on ice or snow, a trip and fall on uneven pavement, a swimming pool accident, assaults, rapes, a fall from a balcony or window, a fall into a hole that was not open and obvious, injuries suffered due to criminal acts because of inadequate security, injuries suffered at an amusement park, bar, shopping center, hospital, apartment building, etc.
When someone enters your home or comes onto your property lawfully, they have a reasonable expectation, under the law, that they will not be injured. What this means is that a property owner or renter is responsible for maintaining a reasonably safe environment. Although some premises liability cases, such as “slip and fall” cases, may seem simple, the laws vary by state and in many states, including Virginia, the law often favors the property owner rather than the injured guest. In determining whether or not you have a meritorious premises liability case, you should consult a personal injury attorney who is experienced in premises liability cases, such as the attorneys at the Halperin Law Center, to assist you with your case.
The premises involved could be vacant land, a home, a public park, or a pace of business.
Who is the Plaintiff?
After determining who owns or is in possession of the property, the premises liability law in most states, including Virginia, requires a determination as to whether the plaintiff was an “invitee,” a “licensee,” or a “trespasser.” The property owner’s duty to the plaintiff can vary significantly depending on the plaintiff’s status.
An “invitee” is a person who is invited to enter or remain on the subject property for a purpose that is directly or indirectly related to or providing a commercial benefit to the owner’s business activities. The “invitation” can be express or implied. For example, a shopper at a supermarket is considered an invitee, because the supermarket actively invites members of the public to their premises to purchase items while at the store. A premises owner owes the highest duty of care to an invitee.
Generally, a property owner has a duty to use ordinary care to warn or otherwise protect invitees from risks of harm from a condition on the owner’s property if the following two conditions are met:
- the risk of harm in question is unreasonable, and
- the property owner knows or should know of the condition, and should realize that the condition involves an unreasonable risk of harm to invitees.
Under Virginia law, a property owner must also have actual or constructive notice of the unsafe condition or defect. The burden of proof is on the plaintiff to prove that the property owner and/or their agents or employees knew about the danger before his or her injury occurred in order to make the property owner liable for their injuries. In the alternative, the plaintiff can prove that the property owner should have known about the hazardous condition, due to the length of time the condition existed, if they had used ordinary care.
An owner might have a duty to periodically inspect their property for hazards to invitees. For example, a store like Walmart or Target may be obligated to periodically check its floors throughout the store for spilled or broken merchandise, to ensure that items are not likely to fall from store shelves, that carpets and mats are properly secured, wet floors are properly and obviously marked, etc. More detailed information about injuries and assaults at shopping malls can be found on our Shopping Mall Assaults and Injuries page.
In some states such as the Commonwealth of Virginia, hotel and motel owners and operators have an even higher duty of care to their guests and invitees. Hotel owners and operators are required “to use the utmost care and diligence of very cautious persons; and they will be held liable for the slightest negligence which human care, skill and foresight could have foreseen and guarded against.” Taboada v. Daly Seven, Inc., 271 Va. 313, 326, 626 S.E.2d 428, 434 (2006) on reh’g, 273 Va. 269, 641 S.E.2d 68 (2007). For a more in depth discussion of hotel liability, please visit our Hotel and Motel Assaults and Injuries page.
A licensee is a person who is invited to a property for any purpose (other than a business purpose) with the express or implied permission of the property owner or the individual or entity in control of the premises. A guest that you invite to your home for a social occasion is considered to be a licensee under the law, not an invitee, as one might think.
In order for a property owner to be held liable for injuries suffered by a licensee as a result of a condition on the subject premises, the plaintiff must prove the following three elements:
- The owner knew or should have known of the dangerous condition, should have realized that it involved an unreasonable risk of harm to licensees, and should have expected that licensees would not discover or realize said risk;
- The owner failed to exercise reasonable care to make the condition safe, or to warn the licensee of the condition and the risk involved; and
- The licensee did not know or have reason to know of the condition and the risk involved.
For example, if a homeowner is aware that one of the steps leading up to his attic is broken, but the defect is not obvious to others, the homeowner might be held liable to a guest who is injured as a result of the broken step.
A trespasser, as it relates to premises liability law, is someone who enters the premises of another without any invitation (express or implied), for his or her own purposes, and not for the benefit of the owner. In situations where property owners are not aware of the presence of trespassers, they usually do not have a duty to warn the trespasser of any dangers on the property or to make the property safe for the benefit of a trespasser. If the premises owner is aware of the presence of a trespasser, however, the premises owner might have a duty to use ordinary care for the safety of the trespasser. Further complicating matters, a property owner’s duty to children who are not invited on the property is not the same as it would be to an adult trespasser. Warnings must be given if the owner has reason to believe that it is likely children will be on their property
Non-Delegability of Duties
The duties imposed on a property owner are often “nondelegable.” This means that if the defendant remains in possession of the property, the defendant cannot escape liability simply because she contracted with an outside vendor to provide maintenance or snow and ice removal. For example, a shopping mall remains liable for the condition of its parking lots, even if it hires a snow removal company to remove snow and ice from the parking lot and sidewalks. Similarly, a landlord remains responsible for the condition of the apartments or housing they own, even if they contract with a management company to provide all service and maintenance in relation to the apartments.
Investigating Your Potential Case
Insurance companies and potential defendants generally act quickly in contacting potential witnesses and injured parties, taking photographs and performing other investigations. To protect your own interests, you and your lawyer should photograph the scene of the accident and the dangerous condition as soon as possible. An experienced premises liability attorney should be consulted in order to have the property inspected by the appropriate safety engineers and other experts to determine causation and any potential code violations or violations of the standard of care. An experienced injury lawyer will also be able to initiate a detailed investigation that includes interviews with all potential witnesses, interviews of employees, a search for prior injuries on the same premises, and a search for prior complaints to the property owner that would help to prove that the owner was on notice of the hazardous condition.
The scene of your accident can change very quickly. Take notes about all of the details that you can remember as soon as possible, and take photographs if you are able. If you slipped or tripped on an object, make sure that you photograph the object and preserve it if possible. All of this information will be invaluable to your attorney and his or her team of experts and investigators as they determine if you have a viable premises liability case.
In summary, premises liability cases can be complex, and involve a myriad of legal and other factors. It is important to speak with a personal injury attorney who is experienced and has been successful with premises liability cases. If you have been hurt or a loved one was killed due to an unsafe condition on someone else’s property, the trial lawyers at the Halperin Law Center can assist you in determining if you have a viable claim, and if so, can vigorously pursue justice on your behalf to ensure you receive fair compensation for your harms and losses. Contact us today at 804-527-0100 or firstname.lastname@example.org to set up a no-cost, no-obligation consultation with an attorney to discuss your case.