As an attorney who worked for an insurance company and defense firm for years, I have handled cases where a property owner is being sued for a slip and fall accident. Whether a successful claim or lawsuit can be made against the property owner because of an alleged defect or condition on a homeowner’s or business’ property depends upon whether you invited or gave permission for the person to come onto your property and what that person was doing when they fell.
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The law dealing with a landowner’s duty of care is governed by whether the person injured on the property was a trespasser, licensee, or invitee. Below, I will provide some examples of court cases that help explain the concepts.
The definition of a trespasser is essentially a person who comes onto the property without consent, permission or any right to be on the property. A trespasser is offered little protection under the law if he or she is injured on someone’s property. The property owner’s duty is simply to avoid “willful or wanton misconduct.” The meaning of “willful or wanton” has been described as, conduct in reckless disregard of the safety of another. This is a different standard than simply being negligent to warn of a dangerous condition.
This concept can be tricky, because sometimes a person can enter property with permission, but then become a trespasser by going to a prohibited area of the property. In one Pennsylvania case, a teenager playing in a school yard became a “trespasser” when he climbed onto the school roof. The court held once he climbed on the school roof, he was a trespasser. Since the injury happened when the teenager was on the school roof, he was considered a trespasser.
As a property owner, you should be careful not to permit trespassing. For example, if your property becomes a short cut for others to cross through and you are aware of it, this could lead to an argument that you are “permitting” trespassing or the trespasser was foreseeable and thus you must exercise more care to prevent or warn of a dangerous condition. Posting “no trespassing” signs or putting some sort of barrier can be helpful for property owners to argue that the injured party was a trespasser and clearly knew they were not permitted to be on the property.
If a person is permitted to be on your property by your actions (inviting a social guest or neighbor to come over to your home) or if they are permitted by law to be on your property, they are generally classified as a licensee.
Examples of licensees are:
In the case of a licensee, a landowner is responsible to make his or her property safe or warn the person of the condition of the property that he or she knows involves an unreasonable risk of harm. In other words, you have a duty to warn of hidden or non-obvious dangerous conditions which you know about or should know about. This could be a broken step, a non-obvious hole in the yard, a rotted piece of handrail or deck, a hidden tree root or other hidden or obscure things on your property. Some courts have held that with respect to licensees, a landowner has no duty to make a special inspection of the property for hidden or latent defects. The thought is that the licensee is in the same shoes as the landowner, and thus the duty of the landowner is to make sure of adequate disclosure of any dangerous conditions that are known to the landowner.
So, you can think of it this way. While your guest must keep their eyes open for obvious conditions which anyone should see, it is your responsibility to warn them of conditions that are not obvious or hidden that you know about. So, if you have been meaning to fix that broken step or railing with an exposed nail, you should either fix it or warn your guest of it.
A property owner owes the highest duty of care to an “invitee,” including a duty to inspect the property and find hidden or latent defects the property owner may not know about. There are two types of invitees, a “business invitee” and a “public invitee.” A business invitee is a person “invited to enter or remain” on a property and for a purpose directly or indirectly connected with business dealings with the owner of the property. A “public invitee” is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.
Generally, “invitees” deal with property being used for business, such as customers or members of the public using a business property. However, this could include opening your home to a garage sale or having a business party at your home. If you plan to open up your house for a business purpose, any person of the public that comes for that purpose may be considered an “invitee.”
A person can still be a business invitee, even if they enter the business property not to make a purchase. A business invitee can also include people entering a business property for their own purposes, if the visit relates to a purpose for which landowner or business uses the land. Thus, the courts have held that a person who entered the parking lot of a convenience store and slipped on a patch of ice where she stopped to use the pay phone and not make a purchase, was a business invitee.
In contrast to a licensee, a property owner’s duty to an invitee can require an attempt to discover the property’s actual condition and latent or hidden defects by making an inspection, followed by necessary repairs or proper warnings to protect the invitee. In effect, a licensee is entitled to the same degree of protection as the defendant landowner. However, an invitee, on the other hand, is entitled to rely on an expectation that land being held open for use by the public has been made safe.
So, if you run a business out of your house, decide to have a yard sale, or throw a business party or event at your house, your neighbor or potential customer may well be an invitee. In that case, you should make a thorough inspection of your home to make sure there are no hidden or latent defects that could injure someone. You may even want to think about hiring a home inspector, who is more qualified to make such an inspection. In the case of a business invitee, it is not enough for you to argue that you did not know about the rotted step, the rusty nail popping through the wall, the broken chair on the deck, the surface tree root or stump creating a tripping hazard, the driveway crack or depression. You have a duty to perform a reasonable inspection and make safe any dangerous condition that you find.
Litvin and McHugh, 3 West’s Pa. Prac., Torts: Law and Advocacy § 5.2 (2016).
Section 332, Restatement of Torts, Second
Cresswell v. End, 831 A.2d 673 (Pa.Super.2003)