Premises liability is an area of law that specifically deals with the safety of individuals while on private property. Generally speaking, property owners have an obligation to insure that their premises are safe for visitors, either by performing proper maintenance or by posting appropriate warnings to indicate potential hazards. In a premises liability claim, the legal issue that needs to be decided is whether the property owner is responsible for the accident and whether the property owner owes the injured person compensation for injuries sustained on the premises as a result of the property owner’s negligence. Premises liability cases arise in a variety of situations, including persons who are injured while visiting a commercial establishment or as invited social guests at another’s home. These kinds of cases are also frequently referred to as “slip and fall” cases.

Premises liability in Michigan is very significantly affected by the “open and obvious doctrine.” Under this legal rule, a property owner may be excused from responsibility for another person’s injury if the condition that caused the injury is determined to be an “open and obvious danger.” An open and obvious danger is defined as a “condition that an average person of ordinary intelligence would discover based upon casual inspection.” Whether a condition is truly an open and obvious danger depends upon the specific facts of each individual case. Moreover, even if a condition is determined to be an open and obvious danger, if there are “special aspects” that surround this open and obvious condition, the open and obvious doctrine may not prevent the injured person from recovering compensation for his or her injuries. Additionally, if an injury occurs as a result of “ordinary negligence” as opposed to a “condition on the land,” the open and obvious doctrine may not apply. Whether an individual case will be affected by the open and obvious doctrine needs to be determined by attorneys who are very familiar with premises liability law. Therefore, a person who has been injured on the premises of another due to poor maintenance, defective property design, or other dangerous conditions or hazardous conduct, may very well be entitled to compensation for their injuries and damages.

Premises Liability Law Overview

What rights does an injured person have when injured on the property of another? This question is often asked because of the many different kinds of injuries that occur as a result of negligence of property owners. The rights of injured victims in these “premises liability” cases will be discussed in this article.

Elements of a Claim

In premises liability cases, as in other negligence cases, an injured person must show the following in order to recover: 1) a duty owing for the property owner to the injured victim; 2) a breach of that duty; 3) a causal relationship between breach of duty and injury; and 4) damages. Generally, if the injured person can prove these elements, a personal injury claim can be successfully pursued.

In these cases one must first determine whether the injured person was an invitee, licensee or trespasser before determining the duty owed. An invitee is either a public invitee or a business invitee. A public invitee is a person who is invited to enter or remain on property as a member of the public, for a purpose in which the property is held open to the public. A business invitee is a person who is invited to enter or remain on property for the purpose of business dealings with the possessor of the property. A property owner owes an invitee the duty to maintain the property in a reasonably safe condition. The owner has a duty to exercise reasonable care to protect the invitee from unreasonable risks of injury that were known to the possessor or that should have been known in the exercise of ordinary care. Under certain circumstances this includes a duty to warn of dangerous conditions and to inspect to discover possible dangerous conditions. This high duty of care owed by a property owner to an invitee would apply, for example, when a person is injured at a business such as a store, gas station, shopping mall or office building. The law places a high standard of care on the business owner because that individual derives an economic benefit from the business dealings of persons coming onto the property.

In contrast to an invitee, a licensee is a person who, other than for a business purpose, enters another’s property with the express or implied permission of the owner. A social guest is a licensee, not an invitee. Therefore, if a person goes to a friend’s house for a visit, that person is considered a licensee, not an invitee.

A property owner owes a lesser standard of care to a licensee than an invitee. A property owner is liable for physical harm or injury caused to a licensee by a condition on the property if, but only if, the following three conditions are met; 1) the possessor knew or should have known of the condition and should have realized it involved an unreasonable risk of harm to the licensee, and should have expected that the licensee would not discover or realize the danger; 2) the property owner failed to exercise reasonable care to make the condition safe, or to warn the licensee of the condition and the risk involved; and 3) the licensee did not know or have reason to know of the condition and the risk involved. Note that the property owner owes no duty to the licensee to inspect to discover possible dangerous conditions.

A low duty of care is owed by the property owner to a trespasser. A trespasser is a person who goes upon the property of another without permission or invitation of the owner. If the property owner did not know and in the exercise of reasonable care could not have known of the presence of the trespasser on his/her property, the property owner owes no duty to either make the premises safe or warn the trespasser of conditions existing on the premises. Therefore, it is very difficult for an injured trespasser to prevail against the property owner in a premises liability case.

A slightly different duty is owed by the property owner with regard to accumulations of ice and snow that cause injury. A property owner must take reasonable measures within a reasonable period of time after an accumulation of ice and snow to diminish the hazzard of injury to invitees. Therefore, a business owner cannot simply allow ice and snow to accumulate on the property and hope that no one is injured. If a property owner does not take reasonable measures to alleviate the dangers posed by ice and snow, the property owner will be liable for resulting injuries.

If the injured person can prove the elements discussed above, that person is entitled to an award of damages for things such as medical bills, lost wages and pain and suffering.

Common Defenses

The most common defense that is used in premises liability cases is the defense of comparative negligence. Just as the law requires a property owner to use reasonable care, the injured person is also required to use reasonable care for his or her own safety. If the injured person acts unreasonably under the circumstances, that person may be charged with comparative negligence. The injured person’s negligence does not bar a recovery against the property owner, but the total amount of damages to which the injured person would otherwise be entitled is reduced by the percentage that the injured person’s negligence contributed to the injury. And, pursuant to a new law which went into effect in 1996, an injured person is not entitled to recover noneconomic damages if he or she is more than 50 percent at fault for the injury. Therefore, comparative negligence works as follows. If an injured person sustains damages in the amount of $100,000, and the injured person is 20 percent comparatively negligent, the person’s damages are reduced by 20 percent for a total damage award of $80,000. If, on the other hand, the injured person is 51 percent negligent, and the property owner is 49 percent negligent, the injured person recovers no noneconomic damages but may still recover economic damages (medical bills and lost wages) which are reduced by the injured person’s percentage of negligence.

Another defense that is frequently used in a premises liability case is the “open and obvious” defense. While the exact parameters of the open and obvious defense are being decided by the appellate courts, where a condition is open and obvious the scope of the property owner’s duty is limited.

If a person is injured as a result of a dangerous condition on the property of another, the injured person has legal rights that must be protected. An attorney should be consulted to determine what those legal rights are and whether or not a successful personal injury claim can be asserted.

View our video on Premises Liability

Contact Our Attorneys Handling Premises Liability Cases

If you or a loved one has been injured on another’s property, you may be entitled to compensation for damages, including medical expenses, lost wages, pain and suffering, and emotional distress.  Contact Sinas, Dramis, Brake, Boughton & McIntyre, P.C. to schedule a consultation with one of our attorneys who handle premises liability cases. At  Sinas, Dramis, Brake, Boughton & McIntyre, P.C. we represent clients throughout Michigan on these types of cases, including Detroit, Ann Arbor, Flint, Lansing, Jackson, Grand Rapids, and Kalamazoo. Call us today for a free consultation.