Premises Liability Basics: Property Possessor, Duty & Status of Entrant

When injuries occur on someone else's property, three key factors will determine liability. Possession of the property, status of the entrant and duty of the possessor.

When you are injured on property that is owned by someone else -- whether another person, business, or some other entity -- the majority of personal injury cases that might result will be governed by a set of rules known as "premises liability" (the classic example is a slip and fall case).

So, what does a premises liability case involve? The kinds of claims typically turn on three essential elements: possession of the land, the entrant’s status, and the defendant’s duty to the entrant. In this article, we'll examine each element.

Possession of the Land

When it comes to premises liability, it is not necessarily the case that the owner of a premises will be liable to an injured plaintiff. What matters most is who has possession and control of the premises at the time of the accident. For example, a tenant does not technically own an apartment, but in the eyes of the law she does often have possession and control of the property. Therefore, if someone is injured in the tenant’s apartment because of something the tenant failed to do, she will be the one liable to the plaintiff -- the owner of the apartment will likely not be held liable.

Of course, there are exceptions to this general rule. For example, a building owner who makes faulty repairs to a tenant’s leased property will be liable for resulting injuries, and the tenant won't be. Also, a previous owner who does not disclose dangerous conditions may be liable for injuries despite no longer being in possession of the premises. It is important to determine whether these or other exceptions apply, but generally it is the possessor of the premises that is responsible for protecting entrants -- according to the entrant's status, which we'll cover in the next section.

Status of Entrant Onto Property, and Duty Owed

Status and duty owed are two directly related elements in a premises liability case. The status of the entrant determines the level of responsibility (or “duty of care”) the possessor of the premises owes to the entrant. As discussed in our article, Premises Liability - Legal Overview, there are there different legal classes of people that can enter onto property ("entrants"), and the property owner typically owes a different duty to each. These are: trespassers, licensees, and invitees.

The lowest duty of care is owed to a trespasser. A trespasser is someone who is not permitted to be on the land, or in the building. Essentially, the possessor is only under a duty not to use excessive force in defending himself, his property or his premises. Other than that, a possessor is generally not under a duty to make the premises safe for trespassers, or to warn of dangers.

The next lowest duty of care is owed to a licensee. A licensee is someone who is permitted to be on the premises if they so desire, but who was not specifically invited (although some types of guests unexpectedly fall into the licensee category. A possessor is under a duty to warn licensees of dangers the possessor knows about and that the licensee cannot easily see for him or herself. Some states may also hold the possessor responsible when a dangerous activity injures a licensee.

The highest duty of care is owed to invitees. An invitee is someone the person in possession has invited onto the premises for the possessor’s benefit, such as store owner opening the store to shoppers or a hotel owner inviting guests to stay. When an entrant is an invitee, the possessor is under a duty to do a reasonable job maintaining and repairing a property so that the invitee is not injured (“duty of reasonable care”).

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