Dangerous Premises

Premises Liability Overview

The legal theory of "premises liability" holds owners and occupiers of property legally responsible for accidents and injuries that occur on that property. The kinds of incidents that give rise to premises liability claims can range from a slip and fall on a public sidewalk to an injury suffered on an amusement park ride.

The liability of owners and occupiers of property will vary depending on the legal rules and principles in place in the state where the premises liability injury occurred. In some states, the court will focus on the status of the injured visitor in determining the liability of the owner or occupier. In other states, the focus will be on the condition of the property and the activities of both the owner and visitor. (Note: an occupier or possessor of land, such as an apartment tenant, is treated in the same manner as a landowner in many situations.)

Legal Status of Visitor: Invitee, Social Guest, Licensee, or Trespasser

In New York State a medical malpractice action must, in most instances, be commenced within two and one-half years (2) from the date the negligence occurred. In Pennsylvania a medical malpractice action must be commenced within two years. It is important, therefore, to contact Attorney Kopko as soon as you believe you may have a case so that there is ample time available to review, prepare and file the legal action.

Legislation Affecting Malpractice Actions

In states that focus only on the status of the visitor to the property, there are generally four different labels that may apply: invitee, social guest, licensee, or trespasser. An invitee is someone who is invited onto the property of another, such as a customer in a store. This invitation usually implies that the property owner/possessor has taken reasonable steps to assure the safety of the premises. A licensee enters property for his own purpose, or as a social guest, and is present at the consent of the owner. Finally, a trespasser enters without any right whatsoever to do so. In the case of licensees and trespassers, there is no implied promise that reasonable care has been taken to assure the safety of the property.

In many states that look to the legal status of the injured person, the trend is toward distinguishing only between those lawfully on the property (invitees, social guests, licensees) and those on the property illegally (trespassers).

Condition of the Property and Nature of Activities

In states where consideration is given to the condition of the property and the activities of the owner and visitor, a uniform standard of care is applied to both invitees and licensees. This uniform standard requires the exercise of reasonable care for the safety of the visitor, other than a trespasser. In order to satisfy the reasonableness standard owed to invitees and/or licensees, an owner has a continuing duty to inspect the property in order to identify dangerous conditions and either repair them or post warnings as appropriate. An owner can be found liable if he or she has knowledge of a dangerous condition, fails to take reasonable steps to fix that condition (or warn visitors), and a visitor suffers an injury as a result.

Determining whether the standard of reasonableness required by an owner toward licensees (and in some states, both licensees and invitees) has been met requires an examination of numerous factors including:

  • Circumstances under which the visitor entered the property;
  • Use to which the property is put;
  • Foreseeability of the accident or injury that occurred;
  • Reasonableness of the owner/possessor's effort to repair a dangerous condition or warn visitors.

Trespassers on Property

With respect to trespassers, if the owner knows that it is likely trespassers will enter the property, he or she may be charged with a duty to give reasonable warning to prevent injury. This requirement applies only with respect to artificial conditions that the owner has created or maintains, and knows may be likely to cause serious injury or death. However, even in cases where there is a dangerous artificial condition, a landowner does not necessarily need to give warning to potential trespassers if the condition is obvious.

Children on Property

A landowner's duty to warn is different with respect to children who are not authorized to be on property. A property owner/possessor must give warning if he or she knows (or should know) that children are likely to be on the premises, and that a dangerous condition on the premises is likely to cause serious bodily injury or death. In order to find liability, the owner/possessor's need to maintain the dangerous condition (and the burden of eliminating it) must be low when compared with the risk to children, and the defendant must have failed to exercise reasonable care to eliminate the danger or otherwise protect children.

Comparative Fault

One of the most commonly used limitations on a property owner/possessor's liability is the argument that the injured person was partially at fault for what happened. A visitor has a duty, in most cases, to exercise reasonable care for his or her own safety. Where that care is not exercised appropriately, the plaintiff's recovery may be limited or reduced by his or her own negligence. New York and Pennsylvania adhere to a "comparative fault" system in personal injury cases, meaning that an injured person's legal damages will be reduced by a percentage that is equivalent to his or her fault for the incident. So, if it is decided that an injured person was 25% liable for an accident, and the total damages were $10,000, he or she will receive only $7,500.

Lessors and Landlords

Special rules of liability may apply in cases of lessors (landlords) of property. The general rule holds that a lessor is not liable to a lessee, or anyone else, for physical harm caused by a condition on the property. This general rule is based partially on the lessor's presumed lack of control over the property once it is leased, but the rule has numerous important exceptions. For example, a lessor is responsible for injuries that occur as a result of a latent defect that existed at the time the lessee took possession of the property if the lessor knew or had reason to know of the defect. A latent defect is a concealed, unreasonably dangerous condition, either artificial or natural. Similarly, if the lessor agrees to undertake a repair for the benefit of the lessee, it must be done in a non-negligent manner. Similar exceptions may apply in other circumstances, such as where the lessor opens the property for admission of the public, or where the lessor maintains control of the premises.

Premises Liability Claims Against the Government

One of the most common premises liability situations occurs when a member of the public is injured by a defect on a public sidewalk or roadway. For example, many accidents occur when traffic lights or signs malfunction, are obscured, or are not present at all. Another example is where a local government entity is performing roadwork involving an excavation or obstruction of the roadway, and someone is injured due to the change in the road's surface or traffic flow. Finally, a very common situation is where someone is injured when he or she trips and falls due to a defect in a public sidewalk. In these cases, it would seem clear that the governmental unit responsible for maintaining the road or walkways should be held legally responsible to the injured party.

Traditionally, however, governmental entities enjoyed what is known as "sovereign immunity," which establishes complete immunity of the government from being sued and found liable in a lawsuit. State and federal governments have reduced this broad sovereign immunity over the years, however, by passing laws that limit the immunity of government entities in certain situations. These laws vary from state to state, but most are modeled on the Federal Tort Claims Act, which is a federal law waiving the sovereign immunity of the federal government under certain circumstances.

The Federal Tort Claims Act

Congress enacted the Federal Tort Claims Act (FTCA) in 1946. Prior to that time, the federal government could not be sued for a personal injury, wrongful death, or property damage caused by its employees unless there was a specific act of Congress explicitly authorizing such an action. Today, the FTCA allows individuals to recover against the federal government for personal injury, wrongful death, and property damage caused by the negligence of a federal employee, acting in the scope of his/her employment.

A person is generally found to be acting within the scope of his/her employment if his/her conduct was authorized by competent authority (for example, a supervisor or a standard operating procedure), and was serving, at least in part, a governmental purpose. If an individual is injured by the act or omission of an independent contractor retained by the federal government, the government might be held liable for the contractor's negligence if the plaintiff can show the government had the authority to control the detailed physical performance of the contractor, and to exercise substantial supervision of its day-to-day activities.

The only type of relief allowed under the FTCA is monetary damages for a specified amount. Federal law governs the procedure for pursuing a claim against the federal government under the FTCA, but the substantive law of the state where the negligent act or omission occurred will determined the government's liability. Under the FTCA, an individual must make his/her claim, in writing, within two years after it becomes apparent a cause of action exists. Submitting a written claim is a prerequisite to bringing a lawsuit against the federal government, and the failure to do so would likely result in the dismissal of a suit against the government.

New York and Pennsylvania Government Immunity Laws, Written Notice of Claim

An individual wishing to bring a premises liability claim against a state or municipal government entity will be bound by the state's government immunity laws. As with claims against the federal government, state immunity statutes have written notice requirements and notice of claim requirements, with which an injured party must comply prior to filing a lawsuit against a government entity. Both New York and Pennsylvania require specific information about the claim to be filed within 90 days, so it is important to speak with Attorney Kopko immediately after your injury.

Getting Legal Help for a Premises Liability Injury

If you or a loved one has suffered a premises liability injury, you should speak with Attorney Kopko to ensure that your legal rights to compensation are fully assessed and protected.

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