Premises Liability Law

Premises liability is an area of civil law that deals with injuries caused by alleged negligence by a property owner or manager.

Examples

Here's how a claim might arise. A person (future plaintiff) is on the property owned or managed by the future defendant. The plaintiff is injured due to an unsafe condition and sues the defendant for negligence, seeking to recover compensation (damages).

These claims arise due to accidents and intentional acts by criminals.

Examples of accidents that might give rise to a claim of premises liability include:

Premises liability law

  • Slip and fall
  • Swimming pool injuries or drownings
  • Scalding water
  • Inadequate bannisters
  • Child injuries including in the playground

Examples of intentional and criminal acts that might lead to premises liability include:

  • Inadequate (negligent) security leading to criminal acts, such as:
  • Burglaries and assaults in a motel, hotel, or residential complex
  • Assaults and murders on the property.

The criminal acts that lead to third party claims of civil liability interest me because of my experience in criminal law as a police officer and prosecutor, I have taught and spoke on this area, and because it has provided an interesting analogy for cybersecurity and cybercrime related litigation. Often, the person committing the intentional criminal act is not identified or apprehended, or, if apprehended has no assets to compensate the victim. So the victim seeks to recover from third parties such as the property owner or manager.

Negligence law plays a dominant role in premises liability law

Premises liability claims are based in negligence.

As I cover in another article, a negligence claim must satisfy three main elements:

  • Duty
  • Breach of that duty
  • Causation of damages.

In premises liability, each of those elements are applied to the circumstances. In sum, one looks at whether the security measures were reasonable under all the circumstances.

Duty

Did the defendant (property owner/manager) owe a duty to the plaintiff (person injured)? A duty is owed to anyone lawfully on the property, and sometimes is owed even to trespassers on the property. The scope of that duty may vary depending on the person, their reason for being on the property, and whether they are entitled to be on the property. Terms you may hear include tenants, invitees, licensees, guests, and trespassers. The duty is to provide a reasonably safe premises.

Breach of that duty

Was the defendant negligent (breached the duty) by failing to keep the premises in a reasonably safe condition.

Causation of damages

Was the defendant's negligence in allowing the unsafe condition a substantial factor in causing the defendant's injury?

Contract law may play a role

Premises liability claims may need to examine contractual terms and how they relate to the facts and liability.

Relevant contracts may exist between one or more of these potential parties to the litigation:

  • Property owner
  • Property manager
  • Security company
  • Cleaning company
  • Other service providers
  • Plaintiff/victim

These contracts may include terms such as

  • Warranties or disclaimers of warranty
  • Disclaimers of liability
  • Notices of and assumptions of risk
  • Indemnification clauses.

Have a reasonable security program

Organizations should have a reasonable security program to try prevent crime in the first place, and to defend against a civil claim for negligent security claims if a crime does occur. Prevention is always key, a defensible program is next. The goal is to have reasonable and effective security.

A good security program should be tailored to each organization's unique circumstances.

First, organizations can look to general concepts and follow my Five Components for Policy Work, which envision reviewing organization mission, laws and regulations, guidance, and existing and desired practice, and then creating and implementing internal rules such as policies and procedures.

A security program incorporates a review of these general areas:

  • Legal obligations (statutory, negligence, contract, etc., which I call "external rules")
  • Mission of the organization
  • Policies and procedures (internal rules)
  • Guidance (security best practices, etc.)
  • Current practices and desired practices

Then the organization considers this:

  • Risk analysis (potential crimes, measures to prevent or reduce the harm of those crimes)
  • Security measures
  • Investigation measures

Then the organization considers their plan and security measures. Whether individual measures should be implemented is an organization decision based on the circumstances and will be judged with hindsight using the reasonableness standard.

  • Written documentation on policies, standards, and procedures about their internal rules for security and what the organization and people within it should do.
  • Lighting
  • Access control (fences, doors, locks, other access control measures)
  • Video surveillance
  • Security alarms
  • General employee duties
  • Security personnel (if engaged, and duties)
  • Review, reporting, and remediation of unsafe conditions on the property, or that can provide opportunities for criminal offenders (inoperable equipment, etc.)
  • Contracts with third parties that relate to security and crime
  • Training
  • Awareness measures
  • Investigation process
  • Level of involvement, reporting, and cooperation with law enforcement

Conclusion

This is a brief summary with simplifications, attempting to bring complex subject matter to all readers in an understandable and accessible manner. This is not legal advice nor consulting advice, and is not tailored to your circumstances. The law is different in each state, and the law evolves as well.

Resources

This landing page is hosted at https://johnbandler.com/premises-liability-law, copyright John Bandler, all rights reserved.

Posted 10/26/2022. Updated 11/16/2022.