“Premises liability” is the short-hand term for the set of laws used to determine who (if anyone) is liable when a particular condition or use of a building, land or other premises causes an injury. Historically, premises liability laws were fairly complex, and remain so in many states. What makes them complex is that the kind of condition or use that will make a premises owner or occupier liable for injury on property depends on the category of the person injured (called the “entrant”).
Some states are beginning to get rid of this category approach, but even in those states, the older category laws still inform the owner or occupier’s responsibility. The three main categories of entrant are: invitee, licensee and trespasser. Below we'll take a closer look at each category.
A premises owner or occupier has the highest level of responsibility to entrants that fall into the “invitee” category. An invitee is someone the premises owner or occupier has invited onto the premises for the owner or occupier’s benefit. The most common example of an invitee is a store patron: the business owner has invited the patron into the store so that the owner can benefit from the patron’s business.
A premises owner or occupier is under a duty to do a reasonable job maintaining and repairing a property so that invitees are not injured. In legal terminology, this is called a duty of reasonable care. If the owner or occupier has fulfilled his duty of reasonable care, but an invitee is injured anyway, the owner or occupier will not be liable to the invitee. However, if the judge or jury determines that the owner or occupier did not fulfill his responsibility in maintaining the property, he or she is liable for any injuries an invitee sustains as a result of the lack of maintenance or repair. (Learn more about injury liability of business owners.)
A licensee is someone who is permitted to be on the premises, as opposed to someone who is invited. The distinction between invitees and licensees is often difficult and is determined by either the judge or the jury, depending on the circumstances of the case and the law of the state.
The general rule of thumb is that an owner or occupier desires an invitee to be on the premises, while a licensee is allowed to be on the premises if the licensee so desires. An exception to this rule of thumb is that social guests, for example people attending a party, are generally considered licensees and not invitees. Another exception is that family members are also considered licensees.
An owner or occupier has a lower level of responsibility to a licensee than an invitee. The owner or occupier must warn a licensee of any dangers that the licensee can’t easily see for his or herself. Other than that, an owner or occupier is not under any duty to maintain or repair conditions on the premises. However, he or she can be held liable for dangerous activities that injure a licensee, depending on the law of the state.
The lowest level of responsibility is owed to trespassers. Essentially, no duty is owed, other than to avoid intentionally injuring a trespasser for reasons other than self-defense.
One complicated exception is the child trespasser. If an owner or occupier creates or maintains an object or other dangerous condition that would entice children to play with it, he or she may be liable for a child’s injuries even if the child was a trespasser. How a judge and/or jury will apply this law (typically called the “attractive nuisance doctrine”) can be a little unpredictable.
Changing Status of Entrant Onto Property
An entrant’s status can change while he or she is one the premises.
For example, Sally is having a yard sale. Anyone in her front yard during the sale is an invitee. If Sally doesn’t allow sale patrons into her house, but someone sneaks into the house anyway, that entrant is now a trespasser. Sally would potentially be liable if an invitee in the front yard broke their ankle in a hole, but not if that same person entered the house without permission and broke their ankle in a hole in the entryway.
To give an idea of how complicated and potentially unpredictable premises liability law can be, consider a related example:
An invitee at the yard sale asks Sally permission to enter the house and use the bathroom. The person then enters the house and breaks his or her ankle in the hole in the entryway.
Some cases say that the person was a licensee when he or she entered the house because he or she only had permission, not an invitation, to enter. As a licensee, if the hole in the entryway was something anybody would notice (i.e. the danger was obvious), Sally would not be liable for the licensee’s injury. Also, if the licensee was warned of the hole, Sally would not be liable.
However, other cases imply that the even after the invitee enters the house to use the bathroom, he or she remains an invitee because he or she is still a patron of the yard sale. If the entrant remains an invitee in the house, Sally could be liable for the invitee’s broken ankle if the hole in the entryway was unreasonably dangerous – if the hole is sufficiently dangerous, even a warning won’t get Sally off the hook.