Property Owner Liability for Injuries

When a person is hurt on someone else’s property due to a preexisting condition, the injured party may have a cause of action for negligence against the owner. Negligence claims require the plaintiff to show that the defendant had a legal duty to the plaintiff which was breached and that the breach caused the plaintiff’s injuries. For property owners, the type of legal duty depends on the status of the person coming onto the property. Under Georgia law, the status of a person venturing onto someone else’s property is divided into three categories: trespasser, licensee, or invitee.

A trespasser is a person who wrongfully enters the property owned or occupied by another even if the entrance is peaceful or by mistake. Property owners generally owe no duty to keep their premises safe for the benefit of trespassers. However, owners may not willfully or wantonly injure trespassers, and owners may be liable if they fail to exercise ordinary care to protect anticipated trespassers from dangerous activities or hidden dangers such as open pits or wells. The age, mental capacity, or physical capacity of a trespasser generally does not affect the person’s status as a trespasser. Furthermore, this duty generally does not change even when the owner knows that trespassers regularly come onto his property, and an owner’s knowledge that a person occasionally trespasses does not imply a license or consent.

One major exception to the duty owed to trespassers is the doctrine of attractive nuisance. A landowner may be liable to a trespassing child when an artificial condition creates the injury. Specifically, liability attaches when five elements are met: the owner knows, or has reason to know, that children are likely to trespass where the condition exists; the owner knows, or has reason to know, that the condition involves an unreasonable risk of death or serious harm to trespassing children; children do not discover the condition or realize its risk due to their youth; the utility of the condition to the owner and the burden of eliminating the danger are small in comparison to the risk to children; and the owner fails to exercise reasonable care to eliminate the danger or protect children. Yet, if parents are watching their child play and are aware of the dangerous condition, the property owner will generally not be liable.

A licensee is not a customer or trespasser, but is instead permitted to be on the property for some personal reason. In other words, a licensee is generally a social guest, police officer, or fireman. The property owner is usually responsible to a licensee only if the licensee is injured through some willful conduct of the owner. Additionally, a landowner owes a duty to use ordinary care to protect anticipated licensees from dangerous activities on the premises. With social guests, the actual danger to the guest must be known and foreseen by the property owner before any duty to protect exists.

An invitee is generally a person who is invited onto the premises by the owner as member of the public or as someone who has business dealings with the owner. Georgia law defines an invitee as a person whose presence is of mutual benefit to both him and the landowner. For example, a customer at a store or restaurant is typically an invitee. When an owner invites such a person onto his premises, he is liable for injuries caused by his failure to exercise ordinary care in keeping the premises safe. An owner may be found liable when he might have foreseen that some injury would result from his act or omission and that the consequences may be of a generally injurious nature. Additionally, the owner has a duty to warn of hidden dangers or defects not observable to invitees, but there is no duty to warn of a condition that is open and obvious. Moreover, there may be no liability when the invitee had equal knowledge of a defect on the premises.

Under the invitee standard of care, the owner must inspect the premises to discover possible dangerous conditions of which the owner does not have actual knowledge. However, if an owner does not know of a dangerous condition and could not have discovered it through the exercise of reasonable care, there is no duty to warn or eliminate the danger. Importantly, a landowner’s duty to keep his premises reasonably safe generally may not be delegated to a third party such as a janitorial service.

In order to prove that a defendant did not exercise ordinary care, a plaintiff must generally show that a hazardous condition existed and that the owner had superior knowledge of that hazard. It is not enough to say that an unfortunate event occurred and that the plaintiff was injured. If there is no evidence that the owner knew or should have known of the dangerous condition, then the owner generally cannot be held liable. A plaintiff may win under this rule of superior knowledge by showing that the defendant had actual or constructive knowledge of the hazard.

In slip and fall cases, actual knowledge is something more than an employee’s knowledge about a hazard that might exist. For instance, an employee who admits he saw baby oil spill on the floor and knew it was a danger is an example of actual knowledge. Constructive knowledge may be proved by showing that an employee was in the immediate vicinity and had an opportunity to correct the hazardous condition prior to the injury. In the alternative, the plaintiff may show that a substance had been on the floor for a sufficient length of time for knowledge to be imputed to the store.

Prior occurrences or accidents on a property may also be used to show that a condition existed and that the owner had knowledge of that condition. To be considered, the prior occurrence must be sufficiently similar to the incident at issue so as to attract the owner’s attention to the dangerous condition that led to the plaintiff’s accident.

Violations of statutes, codes, or ordinances may constitute negligence per se on the part of the owner. Negligence per se generally creates a presumption that the owner was in fact negligent, but the plaintiff arguing negligence per se must still prove that the breach of a duty proximately cause his injuries. However, even when a code or regulation has been violated, if the plaintiff had equal knowledge about the danger his claim may be barred.

A plaintiff who wins at trial may be awarded different types of damages. Damages are generally broken into two categories: special and general. Special damages are usually easily measured, such as medical bills, lost profits, and loss of employment. The plaintiff must plead these losses fully and specifically. If someone has died because of a property owner’s negligence, a plaintiff may be able to seek recovery for the wrongful death of his or her decedent. The measure of a wrongful death recovery is the full value of the life of the decedent, which includes an economic element and an intangible element. Punitive damages may also be awarded. An action for personal injury in Georgia must generally be brought within two years after the injury occurs.

Landowners have several defenses against premises liability claims. To begin with, land users must exercise ordinary care for their own safety. Unless the alleged defect is an inherently dangerous condition, the question becomes whether the plaintiff acted with the prudence of an ordinarily careful person in a like situation. For instance, a store customer must exercise ordinary care by using all of his senses to discover dangers. Additionally, an invitee has a duty equal to that of the owner to use his or her sight to discover any defects or dangers. The reasonableness of an invitee’s attempts to protect himself from discoverable dangers is determined by all the circumstances at the time and place of the injury.

A landowner may also cite the plain view doctrine. The plain view doctrine says that an invitee is under a duty to look where he or she is walking and to see obvious, large objects in plain view and in places they are customarily found and expected to be. This defense essentially establishes constructive knowledge on the part of the plaintiff. A plaintiff may also be barred from recovery if he assumed the risk of his injury. Assumption of the risk occurs when a plaintiff, with full appreciation of the danger and without coercion, deliberately chooses an obviously perilous course of conduct. When a plaintiff has endured a dangerous condition on a previous occasion, the plaintiff generally cannot recover, because he is presumed to have had knowledge of that defect and should have used care to avoid the defect on subsequent occasions.

It is important to note that an injured party may have more or different options in pursuing a premises liability case. This area of law contains many exceptions and a vast array of possible scenarios that have not been touched upon. The complexity and seriousness of a premises liability action underscore the necessity of an experienced attorney who will fight for your rights and interests.

The information provided above is a very general summary of the law of premises liability at the time this text was prepared. Because this analysis is subject to change depending upon recent cases and legal developments, you should not rely on this summary as legal advice. As with any important legal question, you should always consult a lawyer licensed to practice in your jurisdiction. Our lawyers are licensed to practice in all state and federal courts in Georgia.