Dangerous Premises Defects

The owner of a premise has a duty to exercise ordinary or reasonable care to see that those portions of the premises which persons may be expected to use are reasonably safe[i].

The owner or occupant of land, who by invitation, express or implied, induces or leads another to come upon his/her premises for any lawful purpose, is liable in damages to such persons for injuries occasioned by the unsafe condition of the land or its approaches, if such condition was known to him[ii].

Although, the occupier of land is not the insurer of the safety of those who enter with his/her permission, his/her obligation of reasonable care is a full one[iii]. Thus, it is not enough for a plaintiff merely to show that danger existed, s/he should demonstrate that the defect which caused his/her harm was of such character or duration that due care would have uncovered it.

However, if more than one means of entrance and exit is provided, the landowner may be relieved of liability for a person injured while using a way with an obvious defect when another adequate and safer way is available.

An owner’s reasonable care extends to keep the approaches to his/her building, including sidewalks and driveways, in a reasonably safe condition for the use of persons having business on his/her premises[iv].

The status of a tenant at the time of an alleged injury is important in determining the rights and liabilities of the parties, in as much as a tenant, in his/her use of certain parts of the landlord’s premises, may be an invitee, trespasser, or a mere licensee[v]. A landowner may be liable for failure to exercise reasonable care for an invitee’s safety, but not in a case of a licensee[vi]. Similarly, the owner of a land is not bound to protect or provide safeguards for wrongdoers[vii].

Where a person goes upon the premises of another without invitation but simply as a bare licensee, and the owner of the property passively acquiesces in his/her coming, if an injury is sustained by reason of a mere defect in the premises, the owner is not liable for negligence for such person has taken all the risk upon himself[viii].

A possessor who actually knew or should have known of a dangerous condition upon adjacent property which threatens his/her invitees’ safety by reason of their customary use of that property will be held liable for their resulting damage[ix].

A possessor of land over which there is a public highway or private right of way is not subject to liability for physical harm caused to travelers upon the highway or persons lawfully using the way by his/her failure to exercise reasonable care, to maintain the highway or way in safe condition for their use, or to warn them of dangerous conditions[x].

At common law, there is no obligation upon a landowner to fence his/her property[xi]. In the absence of evidence that a landowner acted wantonly or recklessly in erecting a fence, s/he is not liable to one injured by coming in contact with the fence, even though the landowner knew that the injured person had been using the property as a shortcut.

The Kahn doctrine sets forth the standard for determining the liability of an owner, occupier, or controller of land to children injured on their premises[xii]. Under the Kahn doctrine, a duty will be imposed on an owner, occupier, or controller of land to remedy a dangerous condition on the premises or to otherwise protect children from injury resulting from it where[xiii]:

  • the owner, occupier, or controller knew or should have known that children habitually frequent the property;
  • a defective structure or dangerous condition was present on the property;
  • the defective structure or dangerous condition was likely to injure children because they are incapable, because of age and maturity, of appreciating the risk involved; and
  • the expense and burden of remedying the defective structure or dangerous condition was slight when compared to the risk created to children.

Further, there is no duty upon an owner of premises abutting a public sidewalk to keep it clear from snow, ice, or water which is upon it from natural causes, or to guard against accident by placing sawdust or other substances upon the sidewalk[xiv]. A person may recover damages from a municipality for injuries received by reason of a defect in a public way.

[i] Burmeister v. Am. Motorists Ins. Co., 403 So. 2d 541 (Fla. Dist. Ct. App. 4th Dist. 1981).

[ii] Patten v. Bartlett, 111 Me. 409 (Me. 1914).

[iii] Putnam v. Stout, 38 N.Y.2d 607 (N.Y. 1976).

[iv] Hellon v. Trotwood Apartments, Inc., 62 Tenn. App. 203 (Tenn. Ct. App. 1970).

[v] Cohen v. Davies, 305 Mass. 152 (Mass. 1940).

[vi] Langford v. Cook County, 127 Ill. App. 3d 697 (Ill. App. Ct. 1st Dist. 1984).

[vii] Monroe v. Atlantic C. L. R. Co., 151 N.C. 374 (N.C. 1909).

[viii] Louisville & N. R. Co. v. Hobbs, 155 Ky. 130 (Ky. 1913).

[ix] Cothern v. La Rocca, 255 La. 673, 687 (La. 1970).

[x] Langford v. Cook County, 127 Ill. App. 3d 697 (Ill. App. Ct. 1st Dist. 1984).

[xi] Barnaby v. Rice, 75 A.D.2d 179 (N.Y. App. Div. 3d Dep’t 1980).

[xii] Calhoun v. Belt Ry. Co., 314 Ill. App. 3d 513 (Ill. App. Ct. 1st Dist. 2000).

[xiii] Id.

[xiv] Gamere v. 236 Commonwealth Ave. Condominium Asso., 19 Mass. App. Ct. 359 (Mass. App. Ct. 1985).

This article contributed by USLEGAL.com

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