Can a Warning Sign Limit a Property Owner's Liability?

Under premises liability rules, a property owner's potential liability for injuries occurring on their property can be affected by the presence (or absence) of warning signs. In this article, we'll look at when warning signs might be a good idea, and how a sign might affect a visitor's personal injury claim against a property owner.

Warning Signs and Negligence

In most cases, personal injury liability is determined by whether or not the defendant (the person being sued) was negligent. So, is the failure to post a warning sign "negligence" in the eyes of the law? If a property owner does post a prominent warning sign, can he or she avoid liability?

What is negligence? The legal concept of negligence holds people accountable in a civil lawsuit seeking a remedy for the unintentional harm they cause to others. To prove negligence in a case arising from injury on unsafe property, the injured person (the plaintiff) must show that the property owner/occupier failed to act with reasonable care under the circumstances, and that the plaintiff was injured as a result.

What is "reasonable care"? A property owner/occupier has a legal duty to exercise reasonable care in maintaining his or her property. To determine whether or not a property owner/occupier acted reasonably, courts ask what a reasonably prudent owner/occupier would do under the circumstances that led to the plaintiff's injury, and whether the property owner/occupier exercised at least that level of care.

When it comes to maintenance and security of property "reasonable care" usually means repairing all known and readily ascertainable dangers and giving visitors notice of any non-obvious safety issues. In other words, a property owner/occupier likely has a duty to warn of known and latent dangers which are not known to the visitor and which the visitor could not reasonably discover on his or her own. This duty extends to dangers which the property owner/occupier should have known about if he or she exercised reasonable care. If a warning sign is present, the visitor may be said to have "assumed the risk" of any dangers.

Other key issues in a negligence determination include foreseeability and proximate cause.

Property Owner's Duty to Visitors

Historically, whether or not a property owner/occupier was liable for injuries was dependent upon the status of the person entering the land. More recently, however, states rejected this approach and use principles of ordinary negligence when it comes to premises liability.

Liability Based Upon the Status of the Person on the Land. The historical approach used in many jurisdictions to determine the property owner/occupier's standard of care depends upon the status of the person entering the land: (1) invitees, (2) licensees, and (3) trespassers.

• Invitees. An invitee is someone that enters the land for the financial benefit of the property owner/occupier, or a person that enters land generally open to the public at large. To invitees, a property owner/occupier owes the duty of reasonable care in maintaining the premises. This duty includes an affirmative obligation to discover dangers on the property or to warn of them. If the land owner/occupier has a warning sign present and a personal injury occurs nonetheless, he or she will probably not be liable because he or she exercised the level of care required of him or her and the invitee is said to have "assumed the risk" of the danger. A property owner/occupier's legal duty to an invitee is similar to the "reasonable care" standard laid out above.
• Licensees. A licensee is any person who has the property owner/occupier's express or implied permission to enter the land. Social guests, for example, are licensees. However, if the social guest is asked to the leave the property and refuses, he or she becomes a trespasser. To licensees, a property owner/occupier must fix or warn of concealed dangers he or she knew or should have known about of which the licensee was unaware. If the land owner/occupier has a warning sign present and a personal injury occurs nonetheless, as with invitees, he or she will probably not be liable.
• Trespassers. A trespasser is someone who unlawfully enters or remains on the land of another. To trespassers, the property owner/occupier owes no duty except to refrain from willfully and wantonly harming the trespasser. In such situations, the presence or absence of a warning sign is usually not relevant to whether or not the land owner will escape liability. However, note that the analysis may change in some states if the trespasser is a child or a frequent and known trespasser.

"Status" Versus Negligence Approach. Many jurisdictions have abolished this "status"-based approach and simply use the "reasonable care" standard (discussed above) for all entrants onto the land. California was the first state to take such an approach.

Effectiveness of Warning Signs

One key determination is the effectiveness of the warning sign. A warning sign is only effective if it puts the person entering the property on notice of a certain dangers. A sign that is too small, that is placed in a non-prominent location, or is unreadable would not be adequate because it would probably not put the visitor on notice of the danger. In such situations, the property owner/occupier would probably still be liable for any injuries suffered on the land, regardless of the presence of the warning sign. The same holds true if there is one warning sign on property that consists of dozens of acres.

Insurance Coverage and Getting an Attorney's Help

An injury suffered on someone else's property is almost always going to be covered under the property owner/occupier's homeowner's insurance coverage, and perhaps under some form of "umbrella" coverage as well.

In some cases, the injured person might be able to settle a claim with the property owner/occupier's insurer without filing a personal injury lawsuit. But if your injuries are significant and you want to make sure your right to fair compensation is protected, it may be time to discuss your situation with a personal injury lawyer.