Homeowner Liability and How to Protect Yourself

Home ownership has achieved an almost sacred status in the U.S. Early in the country's history, only property owners could vote. The Fourth Amendment gives every homeowner the right to refuse to allow the police to enter a home without a warrant.Some states have laws that allow homeowners to use deadly force to repel intruders.

But the law also imposes a set of responsibilities that accompany those privileges. Chief among the responsibilities is a legal concept known as "premises liability." In short, if there is a dangerous condition on a piece of property that causes injury to a person, the owner of the property may be liable for those injuries.

What constitutes a “dangerous condition” might surprise some homeowners. For example, a swimming pool might be considered a dangerous condition.

This article discusses the liability of a homeowner for injuries to other people on the property. We'll start by identifying the different types of liability rules in place in different states, then describe how certain arguably dangerous conditions might be viewed by courts, and we'll end by explaining how homeowners can protect themselves from lawsuits over injuries that occur on the property.

State Homeowner Liability Laws

Homeowner’s liability laws vary significantly by state. There are two basic legal rules that states use, described below. Some states use slightly altered versions of these rules, or even combinations of the two. So, be careful when attempting to determine the laws of an individual state.

Laws Based on the Identity of the Injured Person

This is the old school system. It classifies injured individuals as either

• trespassers
• licensees, or
• invitees.

Homeowners have different responsibilities with respect to each classification.

Trespassers are people who do not have permission to be on the property. A homeowner must refrain from willful conduct intended to injure a trespasser (such as setting a trap). But the homeowner has no other responsibility to protect the safety of unanticipated trespassers. A homeowner does have a responsibility to protect the safety of anticipated trespassers. The homeowner must warn such trespassers of dangerous non-obvious conditions on the property.

Licensees are people who are permitted on the property but who are not there for business purposes. A homeowner also has a duty to warn licensees (including most social guests) of dangerous conditions on the property. But once the licensee is warned, the homeowner is generally free from liability. The homeowner does not need to warn a licensee about open and obvious dangerous conditions.

Invitees are people who are on the property for business purposes, and they receive the highest level of protection. Homeowners generally have an obligation to take reasonable measures to make the property safe for licensees.

Laws Based on the "Reasonable Person" Test

The modern trend is for states to throw out the old distinctions based on classifications of people and simply require all homeowners to act reasonably under a given set of circumstances. This system actually produces results quite similar to the old system. For example, most people would probably agree that it would be unreasonable for a homeowner to set traps that could seriously injure trespassers. This system is often considered more just because it does not allow homeowners to escape liability based on outdated technical differences between invitees and licensees.

Dangerous Conditions

The number of potentially dangerous conditions on a homeowner’s property is infinite, but here are a few common examples to provide a guide for how courts might evaluate a particular condition.

Staircase. Common conditions associated with stair accidents are not necessarily considered dangerous conditions, per se. So, homeowners tend to be able to avoid liability to social guests for unlighted stairways and leaving objects on stairways. However, homeowners do tend to be liable for less common conditions, such as failure to extend a handrail to a final step or an unmarked door which could surprise a guest by leading to a basement stairway, with no landing before the first step down.

Swimming Pool. Swimming pools are a surprisingly common cause of death among children in the United States. Laws vary by state, but as a general rule, homeowners are not usually liable for the deaths of trespassing children in pools. But certain factors make it more likely that a homeowner will be liable. For example, a pool that has a particularly enticing visual appeal to a child may be considered more dangerous than the average pool. Also, a pool that would be particularly easy for a child to access might be considered particularly dangerous.

Glass Door. Glass doors are common enough that homeowners will not usually be liable if guests injure themselves by walking into the door. Special circumstances would usually have to be required to justify liability. For example, if the door is in an abnormal location, such that a guest could not be expected to anticipate that a glass door was present, the homeowner might be liable for injuries to the guest.

Homeowner Protection from Injury Liability

There are basically three main ways that homeowners can protect themselves from premises liability lawsuits:

• be extremely careful in providing for the safety of guests on your property
• never allow guests on your property, or
• get insurance.

Since the first two are pretty self explanatory, only the insurance option will be discussed.

Many insurance companies sell insurance options to protect homeowners from premises liability cases. However, homeowners should keep in mind that premises liability insurance does not provide absolute immunity from lawsuits. It is important to carefully read the terms of the policy to understand what types of lawsuits are covered, because there are exceptions in almost every policy.