Premises liability is a term used to
describe the legal responsibility
that owners and occupiers of property have for accidents and injuries that
occur on their property. Premises liability claims can range from slip and fall
incidents to pool drownings to construction site accidents.
It is important to note that anyone who
possesses and controls property faces
potential exposure to property liability
claims; it is not simply ownership of
property that creates a duty.
“For instance, a general contractor or a
real estate agent could be liable for a slip
and fall on a piece of property they possess and control when the owner would
have no liability,” says Mark Masters,
senior partner at Secrest Wardle.
Smart Business spoke with Masters
about premises liability and how
landowners and property managers can
protect themselves from claims and
address the legal duties for which they
are responsible.
What type of legal issues can arise from
premises liability?
Everything. The typical cases include
slips and falls, dog bites, structural collapses, fire losses and assaults. The
claims made can be brought against the
property owner, the property manager, a
tenant or others responsible to maintain
the site. Additionally, it is important to
recognize that the nature of the claim,
and the issues that arise, will depend
upon whether or not the claimant is on
the site as a business guest, a social guest
or a trespasser.
There are, however, unusual and complicated cases. These cases are usually
driven by two factors: severe damages
and a responsible party with no money.
In these cases, claimants will look for the
nearest ‘deep-pocket’ defendant despite
that defendant’s lack of liability.
Premises owners and managers need to
be hyper-vigilant. It is essential to have a
structured approach to the maintenance of your property and to make and keep
accurate records. If an accident happens
or even if someone claims an accident
happened, it should be thoroughly investigated and the results well-documented,
regardless of the claimant’s credibility.
Keeping a photographic record of the
conditions at the time of a claimed accident can be particularly helpful. Those
claims that appear to be the least plausible are frequently the ones most likely to
become lawsuits.
How can landowners and property managers protect themselves from premises
liability claims?
Beyond the actual maintenance of the
property and dealing with claims that
might be made even when there are not
obvious maintenance problems, there
are at least two ways: (1) establish and
maintain good relationships with your
customers and/or tenants, and (2) make
sure your contracts contain the necessary protective language.
In regard to relationships, in addition to
keeping your premises safe and well-maintained, it is important to have procedures in place designed to defuse the
natural reaction of someone who is upset
over having been injured. An offer of
nonmedical assistance, such as calling a
family member or friend, or an offer to
call for an ambulance when combined
with simple courtesy can help reduce the
likelihood that a claim will be filed. If the
identity of the person is known, following up to see how he or she is doing
offers another opportunity to proactively
manage a potential claim.
In regard to the appropriate contract
language, provisions that address the
scope of the contract, indemnity and
your status as an ‘additional insured’ are
among the provisions that work to protect you. In that regard, all of your vendor contracts should be reviewed and
similar provisions should appear in your
commercial leases.
What legal responsibilities do they have for
the safety of the premises?
A possessor of property has the following general duties to business guests:
■ Duty to inspect
■ Duty to repair
■ Duty to warn
■ Duty to make safe
If someone is a residential tenant, then
there are additional statutory duties
owed by the landlord. If someone is a
social guest, then the only duty is to warn
of potential hazards. If someone is a trespasser, however, the only duty is to avoid
intentional harm. When minor children
are involved, there are other considerations that require the input of your
lawyer.
Taken together these steps can effectively mitigate the liability of the premises owner or property manager for accidents that occur on their property.
MARK MASTERS is senior partner at Secrest Wardle. Reach him at (248) 539-2844 or [email protected].
