Almost everyone is familiar with the much maligned slip-and-fall case, but the same area of the law, premises liability, covers a wide variety of injuries, and the same principles apply whether at the case involves a drowning in a public pool, a shooting at a pawn shop, or a, even, a broken hip in a grocery store. However, when are property owners actually liable for injuries that happen on their property? The answer that premises liability law provides comes from the common sense idea that a property owner must protect their visitors from dangers on their property, but only to the extent that an ordinary, responsible person would. Premises liability law differentiates itself because the liability of the property owner depends on who the injured person is. That is the wrinkle in these cases that this article will discuss.
Property owners are expected to protect visitors more to the extent they took effort in getting the individuals onto their property, if they benefit from their presence, or if there is over compelling social need. Thus, property owners owe duties to each invitees (business visitors), licensees (social guests), and trespassers, in decreasing level of duty. In the case of children, property owners are also expected to avoid maintaining conditions that might entice children to injure themselves. Each class of visitor is worth discussing individually below, in order: invitees, licensees, trespassers, and child trespassers.
Invitees are owed a heightened duty of care as they enter a property with invitation of the owner, for the owner’s advantage. The duty to invitees can be characterized as a duty to maintain safe premises. Invitees are usually business visitors, for example: shoppers at a grocery store, golfers at a golf course, or visitors to patients at a hospital. Owners that openly invite the public onto their property have a duty to keep their property in reasonably safe condition. Their duty is not, however, absolute. The duty extends only to hazardous conditions that they, or their agents,
• actually know about,
• they should have known about, or
• they created.
Owners must either warn invitees of or protect invitees from such hazardous conditions, but only if the danger is not open and obvious, since invitees must exercise reasonable care themselves. Owners of business premises open to the public will generally be liable for the criminal acts of third parties if the owner knows or should know that the criminal acts are likely to occur.
Licensees are owed a slightly diminished duty. Licensees are not invited onto a premises for business purposes, but rather enter a premises with consent, but usually for a personal, social purpose. Where an owner of a premises must maintain the safety of a premises for invitees, the owner need not search a premises for dangers for the benefit of licensees. The duty to licensees is to merely warn of dangers that the owner actually knows about, that the licensee would not be expected to discover without injury, i.e. the owner must warn licensees if he or she knows a bridge is to weak to hold a car; the owner need not warn if he or she does not know the bridge is too weak; but, if a bridge is destroyed entirely, the owner will not be liable if a licensee should have seen that the bridge was out.
Trespassers are those individuals who enter a property without consent. In South Carolina, an owner of a premises owes no duty whatsoever to actual trespassers. In other states, a property owner may owe a duty to not maintain a dangerous condition in an area known to be frequented by trespassers. In South Carolina, owners only owe such duty if the owner consents or acquiesces in the constant trespasses.
Children are treated slightly differently. In all cases, owners may owe a slightly higher duty of care to children, given the decreased mental capacity of a child. Owners owe an specially heighted duty to child invitee or licensee when “dangerous instrumentalities” are involved. A dangerous instrumentality is generally an item that is dangerous in its normal usage, e.g. a firearm is a dangerous instrumentality because its normal use is dangerous, but a screwdriver, although it can be used to cause bodily harm, is not a dangerous instrumentality.
Trespassing children create a special separate duty, not applicable to adults, under the doctrine of attractive nuisance. An owner will be liable for a child’s injuries under attractive nuisance if either:
• an artificial condition on the land creates a condition that is both attractive to children and the owner does not reasonably protect children from it, e.g. an in-ground swimming pool within sight of a road that is not fenced in; a chained vicious dog along a property line;
• a dangerous condition is left exposed and no reasonable measures are taken to protect children from coming into contact with it.
Natural conditions like streams or lakes, including man-made ponds, do not generally create liability for owners, even in the case of children, unless the natural condition is itself attractive of children.