Under the common law of every state, the owner or possessor of real property, whether residential or commercial, has a duty to maintain the land, sidewalks, driveways, and structures in ways that minimize the risk of injury to certain visitors on the property. This concept is known under the law as premises liability.
The duty extends to any feature or part of the property over which the owner or possessor has, or should have control, including floors, stairs, stairways, ramps, elevators, escalators, sidewalks, driveways, playgrounds, fences, garages, sheds or other structures.
The Requirements Imposed on the Owner or Possessor
The duty imposed on the owner or possessor varies based on how the law categorizes the visitor:
Invitee: A person who comes on the property to provide a commercial benefit to the owner or possessor is known under the law as a business invitee. A purchaser of goods or services would be an invitee. Most invitees are business invitees.
A person may, however, be a public invitee. A public invitee is on premises open to the public for other than a commercial purpose.
With respect to invitees, the owner or possessor of land owes the highest duty of care when maintaining the property. The property must be reasonably inspected to identify all potential risks. In addition, any hazardous conditions must either be fixed, or warnings must be posted, advising invitees of potential dangers.
Licensee: A licensee comes on the property with the permission of the owner or possessor, but for strictly non-commercial reasons. When you ask a friend into your home, they come in as a licensee. As a general rule, property owners and possessors don’t have a duty toward licensees, unless the licensee can show all of the following:
- The owner/possessor knew or should have known of the danger, and should not have expected that the licensee would discover the hazard
- The owner/possessor did not take reasonable steps to either fix the dangerous condition or warn licensees of the potential risk of injury
- The licensee had no actual knowledge of the hazard or of the risks involved.
Trespasser: A trespasser is anyone who comes on the property without permission of the owner/possessor, and without any benefit to the owner/possessor. No duty is owed to a trespasser. Furthermore, there is generally no requirement that the owner/possessor show that the trespasser entered the property illegally.
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