Many lawyers use the term “premises liability,” which is a phrase that most people don’t use. Therefore, there’s often a misconception about what the term means. In reality, it’s a way to describe the duty owed by a business or property owner. These claims are a type of a negligence lawsuit, which means the focus of a claim is usually on the duty of care owed and whether or not that duty was breached. For your reference, some common examples of these types of claims include, but are not limited to:
- “slip and fall” accidents, including snow and ice
- Injuries sustained in swimming pools, including drowning
- Collapse of decks, balconies, or stairs,
- Exposure to toxic fumes or chemicals
- Other stairway accidents
- Construction site accidents.
Because these claims are generally filed under a negligence cause of action, the key element will be “reasonable care,” or “did the property owner take reasonable precautions to keep visitors safe?” While the requirements for reasonable care owed vary from state-to-state, Massachusetts applies tiered categories for visitors, who are owed varying levels of reasonable care. The categories of visitors – from the highest duty owed to the lowest – are invitees, licensees, and trespassers.
The highest duty of care owed is to an “invitee.” An invitee is someone who has the property owner’s express or implied permission to enter the property, e.g., a patron to a restaurant. These are people invited onto a property for the purpose of spending money or engaging in a business interaction. Invitees are owed a duty to keep the property reasonably safe. Due to the financial nature of the interaction, the duty of care is considered the highest
Just below an invitee is a “licensee.” A licensee also has express or implied permission to enter the property, but does not have a business purpose for being there, e.g., a social guest. Massachusetts has blurred the distinction between duty owed to an invitee and licensee as both are owed the reasonable care duty. What this means in practice is that an invitee and licensee are owed a reasonable duty of care and have the right to file a lawsuit against negligence and carelessness.
Finally, the lowest duty owed is to a “trespasser.” As you likely guessed, a trespasser is someone who does not have any permission – express or implied – to enter the property. However, there is still a minimal duty of care owed. This means that a trespasser cannot sue you for negligence; however, they may be able to if a hazard is “unusually dangerous.” For example, you cannot set a trap on your property for a trespasser. It is worth quickly noting one exception to the trespasser rule relates to children and is known as the “attractive nuisance” doctrine. This is why all swimming pools should have fences around them.
There are three (3) common defenses to premises liability: comparative negligence; “open and obvious” danger; and in the cases of government properties, Sovereign Immunity. For the purposes of this post, we will only discuss the first two (2).
As discussed in our previous Snow and Ice articles, “comparative negligence” assesses a percentage of fault on both the injured party and the property owner, that is, you both share the blame. A judge or jury assesses your percentage of relative fault and deducts that from any damages received. Under comparative negligence laws in Massachusetts, the plaintiff can only be compensated if their share of the blame is less than 51%.
Another defense is that the danger was “open and obvious.” A danger or risk is “open and obvious” if the risk would be obvious to persons of average intelligence. If it is open and obvious, then a property owner does not have a duty to warn of such risks. For example, if you are at a gas station filing your car and are hit by another driver, the owner of the gas station is likely not liable for your injuries because the danger of being hit by another moving car is open and obvious to a person of average intelligence.
If you are a legal entrant to a property and suffered an injury while on that property, you may be able to recover compensation for your injuries. In Massachusetts, and as is the case with many other torts in the state, the statute of limitations to bring a legal claim against a property owner is three (3) years from the date you knew or should have known about the injury. This may seem like a long time, but it helps to explore your options as soon as possible with an experienced premises liability attorney.