Premises Liability When Warning Signs are Present
A property owner/occupier’s liability for injuries sustained on his or her property can be affected by whether or not warning signs are present. First, you must determine whether a warning sign is required. Next, you must determine the effect of the warning sign in terms of whether or not it puts people on notice when they enter or are on the property. This article will discuss personal injury liability when warning signs are present.
Is A Warning Sign Required?
The first step in determining the effect a warning sign has on personal injury liability is to determine whether a warning sign is required at all. If a warning sign is not required, then its presence (or absence) does not affect liability. Whether or not a warning sign is required is governed by a legal principle called “negligence”.
Negligence and Warning Signs
What is negligence? The primary legal principle that holds property owners/occupiers liable for injuries suffered on their property is called negligence. The legal concept of negligence holds people accountable in civil court for the unintentional harm they cause to others. To prove negligence, an injured person must show that the property owner/occupier breached a duty owed to the injured person by not meeting the standard of care required by law, that there was an injury, and that the breach of duty resulted in the injury.
What does “standard of care” mean? Standard of care is a legal term for the amount of attentiveness, prudence, and caution that a person must exercise under the circumstances. If a property owner/occupier does not meet the standard of care and someone is injured as a result, the property owner/occupier is negligent, meaning he or she can be liable for the injuries suffered by the injured person.
Reasonable Care. The most common standard of care is reasonable care: a property owner/occupier must exercise reasonable care in maintaining safe conditions on his or her property. To determine whether or not a property owner/occupier acted reasonably, courts ask (1) what the average, reasonable property owner/occupier would do under like and similar circumstances, and (2) whether the property owner/occupier exercised at least that level of care. Reasonable care and maintenance of property includes repairing dangers or warning of their presence with signage.
The Standard of Care Owed to Persons Who Enter Property
Historically, whether or not a property owner/occupier was liable for injuries was dependent upon the status of the person entering the land. More modernly, however, some states have rejected this approach and use principles of ordinary negligence when it comes to premises liability.
Liability Based Upon the Status of the Person on the Land. The historical approach used in many jurisdictions to determine the property owner/occupier’s standard of care depends upon the status of the person entering the land. There are three basic statuses: (1) invitees, (2) licensees, and (3) trespassers.
- Invitees. An invitee is someone that enters the land for the financial benefit of the property owner/occupier or a person that enters land generally open to the public at large. To invitees, a property owner/occupier owes the duty of reasonable care in maintaining the premises. This duty includes an affirmative obligation to discover dangers on the property or to warn of them. If the land owner/occupier has a warning sign present and a personal injury occurs nonetheless, he or she will probably not be liable because he or she exercised the level of care required of him or her and the invitee is said to have “assumed the risk” of the danger.
- Licensees. A licensee is any person who is has the express or implied permission of the property owner/occupier to enter the land. Social guests, for example, are licensees. However, if the social guest is asked to the leave the property and refuses, he or she becomes a trespasser. To licensees, a property owner/occupier must fix or warn of concealed dangers he or she knew or should have known about of which the licensee was unaware. If the land owner/occupier has a warning sign present and a personal injury occurs nonetheless, as with invitees, he or she will probably not be liable because he or she exercised the level of care required of him or her.
- Trespassers. A trespasser is someone who unlawfully enters or remains on the land of another. To trespassers, the property owner/occupier owes no duty except to refrain from willfully and wantonly harming the trespasser. In such situations, the presence or absence of a warning sign is usually not relevant to whether or not the land owner will escape liability. However, note that the analysis may change in some states if the trespasser is a child or a frequent and known trespasser.
Liability Based Upon Ordinary Negligence. Many jurisdictions have abolished this “status”-based approach and simply use the reasonable person standard for all entrants onto the land. California was the first state to take such an approach
Under this approach, a property owner/occupier has a duty to warn of known and latent dangers which are not known to the entrant and which the entrant could not reasonably discover on his or her own. This duty extends to dangers which the property owner/occupier should have known about if he or she exercised reasonable care. If a warning sign is present, the entrant may be said to have “assumed the risk” of any dangers.
Effect of Warning Signs
After determining whether a warning sign is required, next you must determine the effect of the warning sign. A warning sign is only effective if it puts the person entering the property on notice of hidden dangers. A sign that is too small, placed in an inadequate location, or unreadable would not be adequate because it would not put the entrant on notice of the dangers. In such situations, the property owner/occupier would probably still be liable for any injuries suffered on the land, regardless of the presence of the warning sign.