Personal Injury

What is Premises Liability?

By Carole Bosch, Attorney
The elements of a property owner's legal responsibility for accidents and injuries.

"Premises liability" refers to the potential legal responsibility of a property owner when a person is injured due to an unsafe condition on the property. The concept of premises liability can form the basis of a number of kinds of personal injury cases, including those involving:

  • slip and fall accidents due to water or another slippery condition in a store
  • cracked or uneven sidewalks or other improperly maintained public space
  • unsafe workplaces
  • dog bites and animal attacks
  • inadequate building security resulting in a crime
  • building code violations, and
  • swimming pool accidents.

Premises liability is based on principles of negligence, the fault concept that is at the heart of most injury-related cases. (Learn more: What is Negligence?)

To prevail in a premises liability case, an injured person typically must prove:

  • that the defendant (the person or business being sued) owned, operated, or controlled the property where the injury occurred
  • that the defendant was negligent in the use or maintenance of the property, and
  • that the defendant's negligence was a substantial factor in causing the injury.

Let’s take a closer look at each of these elements.

1. The defendant owned, operated, or controlled the property where the injury occurred

Premises liability does not apply only to property owners. Any person who leases property or operates a business on property may be liable for injuries that occur there.

Control is the most important element in determining liability. For instance, when a property owner leases property to a store operator, the store operator is more likely than the property owner to be held liable for injuries sustained due to a hazardous condition in the store -- such as a wet or slippery floor or a missing handrail. But if a property owner knows of a hazardous condition on the property and does not inform the store operator of its existence, the property owner may be held liable if an injury ensues. To illustrate, an owner who rents retail property with outdated wiring and breaker boxes may be liable if an electrical fire causes injury to a customer.

2. The defendant was negligent in the use or maintenance of the property

Following negligence principles, an injured person in a premises liability case will have to prove the at-fault party owed a duty of care to the injured party, and breached that duty. Traditionally, the duty of care in premises liability cases was dependent on the status of the visitor to the property:

  • If the visitor was an "invitee," that is a friend, a relative, a neighbor, or another person who was granted permission to enter the property, the property owner had a duty to use reasonable care to keep the property safe for the invitee.
  • If the visitor was a "licensee," typically a salesperson, who was granted permission to enter the property typically for business purposes, the property owner had a duty to warn of dangerous conditions if the owner knew of the condition and the licensee was not likely to discovery it.
  • If the visitor was a "trespasser," the property owner usually owed no duty of care unless the trespasser was a child. A property owner owed a duty to use reasonable care to avoid foreseeable risk of harm to children caused by artificial conditions on the property.

Some states still follow this approach. Others have adopted a general duty to use reasonable care to discover, repair, and warn of unsafe conditions on the property. The question becomes: what is reasonable? Does a property owner have a duty to repair every pothole and cracked stair on the property? As under general negligence principles, the following factors are considered:

  • the foreseeability of harm to the injured plaintiff
  • the likelihood of a person being harmed as a result of the unsafe condition
  • the probable seriousness of the injury
  • the extent of the property owner’s control over the unsafe condition
  • the policy of preventing future harm
  • the burden on the at-fault party if a duty is imposed, and
  • the availability, cost and prevalence of insurance against the risk of harm.

Foreseeability of the injury is a critical factor. For instance, a store operator who knows a customer has spilled a bottle of milk in the produce department likely has a duty to clean the spill. But a store operator may not have a duty to keep a defibrillator in the store should a customer suffer a heart attack.

Once a duty is established, the injured party must show that the at-fault party failed to use reasonable care to discover, repair, or warn of the unsafe condition. A store owner who neglected to clean a milk spill in the produce department for two hours may not have acted reasonably.

3. The defendant's negligence was a substantial factor in causing the injury

Whether the property owner’s negligence caused the injury is not always a simple question. What if the unsafe condition should have been obvious to a reasonable person? A milk spill on a white linoleum floor may not be easily seen. But what about spilled tomato ketchup on the same white linoleum floor, with orange cones around the spill? Where unsafe conditions are obvious, the property owner may not always be found liable. Also, in some situations, the injured person may be held partially responsible, and in most states, when a personal injury claimant bears some fault for the underlying accident, any damages awarded are reduced by an amount equal to the claimant's share of fault.

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