Premises Liability Flashcards
First step in Premises Liability
Determine entrant’s legal status in regard to Owner’s property , i.e., trespasser, licensee, or invitee
Proper test is whether owner exercised ________ _____ in the management of property.
reasonable care
Where traditional approach abolished, some statutes have been enacted to limit liability particularly as it pertains to _________ ___.
recreational use
Trespasser: Persons present without a _______ __ _______ of possessor (express or implied)
privilege or consent
Licensee: Persons present with ________, but for their own purposes
consent
Invitee: Persons present at O’s _______ (express or implied) and for O’s benefit (realized or not)
invitation
General Rule: O must refrain from willful, wanton, or reckless conduct regarding the safety of the premises
Trespasser
Once O discovers trespassers or has reason to know that there are constant intruders, O has a duty
to exercise reasonable care in active operations; and
to warn of known dangers that are unlikely to be discovered by T (concealed artificial conditions)
Discovered/Anticipated Trespassers
Most courts impose a duty to exercise reasonable care to avoid foreseeable risk of harm to children caused by artificial conditions on property. Questions are
Can child fully appreciate risk?
Is risk to children outweighed by utility of condition and burden of eliminating danger?
Artificial Conditions Highly Dangerous to Trespassing Children a/k/a Attractive Nuisance
One who enters O’s property with either O’s express or implied permission but for own benefit rather than O’s.
Licensee
Members of O’s household
Under majority rule, social guests
Unsolicited salesperson and persons loitering at places of business
Firefighters, police officers, and other rescue personnel
Licensee
To refrain from actively endangering a licensee and to warn of concealed hazards known to O.
Duty to Licensee
One who enters O’s property in response to an express or implied invitation of O. Usually presence is for the mutual advantage of both parties
Invitee
One who enters as a member of public and for the property’s public purpose, or one who enters a public area which is encouraged by O, e.g., a museum; providing vacant area allowing persons to enter freely
Public Invitee
One who enters for purpose connected with business or other interest of O
Business invitee
One whose presence is reasonably required to achieve goal for which another person has been expressly invited, e.g., someone who comes to the assistance of an invitee.
Implied Invitee
Owes a duty to use reasonable care, including care for
those risks which O is actually aware (even if Invitee is also aware)
those risks which O should have been aware or could have discovered upon reasonable inspection (constructive knowledge)
Reasonable Care: Requires that upon discovery, premises be made safe or adequate warning be provided
Duty to Invitee
Invitor must provide reasonable first aid after it knows or has reason to know that P is ill or injured, and to care for P until P can be cared for by others
Ill and Injured Invitees
Knowledge of dangerous condition will be imputed to O if significant period of time has elapsed; change in product
Constructive Notice
Dangers Known to O
Knowledge of dangerous condition will be imputed to O where mode makes it likely that product will fall on floor
Mode of Operation Doctrine
Dangers Known to O
Generally there is no duty to exercise care or take other precautions where dangerous condition is open an obvious unless there is reason to anticipate harm
A warning sign may not be sufficient to constitute due care so as to create an open and obvious danger
Open and Obvious Dangers Known to P
O owes duty to protect against foreseeable criminal conduct under totality of circumstances
Protection Against Crime
Dangers Known to O
Firefighters, census takers, police, garbage collectors, mail collectors, health inspectors may be characterized as licensees of invitees – often by statutes
Privileged Entrants
Dangers Known to O
Person in occupation with intent to control it; if no other person has subsequently occupied it with such intent
Person who is entitled to immediate occupation of land, if no one else is in possession as stated above
possessor of land
O has obligation for any portion of premises over which it retains control, e.g., corridors, lobbies, elevators, and has power to make necessary repairs or to provide necessary protection
Tenant v. Owner/Lessor
O must warn of existing defects known to L or which L has reason to know
O has agreed to make repairs and reserves right to enter leased premises for purpose of inspecting for defects and repairing them.
O has negligently made repairs
O has the power leases premises knowing T intends to admit public but fails to advise of unreasonably dangerous condition which T is not going to repair
Tenant has obligation to maintain leased premises exceptions
O owes a duty of reasonable care to invitees
who are on property which O is treating as its own; or
where it is reasonable to believe that O controls adjacent property
O has duty to exercise reasonable care with respect to its own activities on land and to control conduct of others on property
O has a duty to exercise reasonable care with respect to active operations on its own property to those off-property
O has a duty to exercise reasonable care with respect to artificial conditions on it own property to those off-property
Duty to Those Off-Premises
