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More Than You Ever Wanted to Know About Premises Liability

Part of the American dream is to own your own home or commercial real property. Although property ownership is a source of joy, pride and hopefully profit, it also brings with it certain responsibilities. One type of responsibility is the duty owed to people who enter that property. Lawyers commonly refer to this as "premises liability."

As a general rule, the property owner (or possessor, such as a tenant) owes a duty of reasonable care to prevent injury to people whose presence is known to the owner where the injury is caused by the owner's active conduct. In other words, a property owner who negligently puts oil on a tile floor will likely be liable to the un-warned entrant who falls as a result.

But what about situations where an injury is caused not by the owner's active conduct, but rather by some defect in the premises or a dangerous condition not caused by the owner? Does the landowner still owe a duty of reasonable care? That answer, and the owner's liability, depends on the status of the person injured on the premises. In most parts of the country there are three common designations: (1) trespassers, (2) licensees, and (3) invitees. Illinois, however, has eliminated the distinction between a licensee and an invitee.

A trespasser is defined as someone who enters property without the permission of the landowner or without some other right to be on the property. The law holds that the entry is for the trespasser's own benefit or convenience rather than for the benefit of the owner. The theory is that the owner is entitled to assume that the trespasser will realize that no preparations for his or her visit have been made, and the trespasser, therefore, is charged with observing any dangerous conditions. Owners have a duty to refrain from "willfully and wantonly" causing injury to trespassers. For example, the owner can't booby-trap the property.

If the landowner learns that trespassers are frequenting his or her property, the owner's duty to the trespasser increases. In addition to the duty to refrain from willfully and wantonly causing injury, the owner now has a duty to warn such "discovered" trespassers of known dangers that are not immediately obvious. In any event, an owner's safest course of action is to always warn of any known dangers on the property. Posting signs warning of dangers is an easy way to avoid potential liability.

A licensee is a person who is invited to enter or remain on the property for any purpose other than a business or commercial one with the express or implied permission of the owner. The most common licensee is the social guest. An invitee is a person invited to enter premises for the owner's commercial benefit or for a purpose directly or indirectly connected with business dealings with the owner. Invitations may be either express or implied. A retail store's customer is an invitee as the store actively invites the public to enter the premises to purchase merchandise.

Prior to 1984, and in many other states to this day, the distinction between a licensee and an invitee dictated the duty owed by the owner. The owner owed a higher duty to an invitee. In the real world, this often led to situations where social guests were injured, but were unable to recover for their damages because they were owed a "watered down" duty when compared to an invitee. As one legal commentator noted, the application of these distinctions was as arbitrary as Jonathan Swift's creation of political appointments based on how high a person could jump.

In order to remove what were viewed as absurd legal fictions, in 1984 the Illinois legislature eliminated these distinctions. In its place, Illinois decreed that a property owner owes a duty of reasonable care under the circumstances regarding the property's condition or as regards acts done (or not done) on the property. Significantly, no changes were made as regards trespassers.

What is reasonable care? Volumes have been written on this topic by our courts and commentators. In short, an owner violates the duty of reasonable care when he or she negligently allows a condition to exist which imperils the safety of someone legally on the property, or when he or she allows hidden dangers to remain on the property without using ordinary care to warn of such dangers.

Of course, there are notable exceptions to that duty. For example, an owner doesn't have to warn of dangers (1) that are known to the entrant, (2) that are open and obvious or that could reasonably be expected to be discovered by the entrant, or (3) that result from the entrant's misuse of the property.

What should a property owner do to reduce the risk of liability? The answer is simple – even if not required under the law, the prudent owner should regularly inspect the property and, if dangerous conditions are noted, should take steps to warn the public. Better safe than sorry.

by Thomas C. Pavlik, Jr.
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