Homeowners Have a Responsibility for the Safety of Visitors

Helen and her husband, George, the latter being a fraternity brother from years ago, are coming to your home to help celebrate your fiftieth birthday. It's winter and the snow that had melted during the day, has re-frozen and is now a thin invisible sheet of ice. You have been helping Helen with the hors d'oeuvres and are wholly unaware of the slippery sidewalk just outside your front door. George slips, falls, hurts his hip and back and his brother-in-law, a personal injury attorney urges him to sue.

It looks like a bad year for the family. Harry the postman is bringing your mail when he steps on the tail of your dog, arousing the animal from a brief but deep nap. Fido, normally lethargic and certainly known throughout the neighborhood as friendly, promptly bites Harry. Our good friends at Dewey, Cheatem and Howe have a new client.

Burglar and druggie, Felix, sneaks onto your property late one evening, rape, plunder and pillage on his mind. You have heard rumors about Felix' activity and you dig a large hole, line the bottom with punji sticks and look forward to the injury the thief will receive. Sure enough, Felix is gratifyingly impaled. While he knows mostly Public Defenders, Mr. Dewey takes him on as a client when he sues you. After all, Dewey will also be representing Felix in his criminal problems and how else can he expect to be paid.

Finally - it's been a hell of a year - Sally the six year old from down the street, is walking from the school bus stop on the other side of your property, sees the trampoline inside your yard, is attracted to it, along with the pile of really cool-looking building materials waiting for the pool contractor to build a waterfall. Sally has been told not to go onto your property and, in fact, you have put in a fence made of wooden posts set every three feet or so around your yard. Sally walks between the posts jumps on the trampoline, falls and hurts her hand, then climbs the pile of stones and thereupon falls into the pool. Mr. Dewey is saddened by Sally's injury and immediately orders the installation of a pool in his yard.

I hope you have a good Homeowners' policy, an excess liability policy, and a lot of assets, because you, my friend, have a litigious couple of years coming up.

Each of the scenarios illustrates a potential liability problem of a homeowner and, to some extent, a business owner. The discussion that follows is, because of the variance in state laws, general; your personal attorney should be consulted on specific cases. Don't have a personal attorney? Shame on you.

Homeowners, and property owners generally, have a responsibility to maintain safe conditions for people coming on or about the property. Homeowners can be and often are held liable to visitors for injuries. If a person is injured as a result of a dangerous or hazardous condition such as water, ice, or snow, as well as sudden changes in flooring, poor lighting, or a hidden hazard, such as a gap or hard to see hole in the ground, the property owner may be fully responsible. There are different levels of responsibility, however, depending on why the injured person came on the property in the first place.

Where a homeowner or business owner, invites others ("invitees" in lawyer-talk) to come upon the property there is a duty to keep the premises safe. The owner also has an obligation to know about potentially dangerous conditions. An owner of an apartment building is supposed to know if hallway lights are out, if a handrail is loose, if the front door lock is broken or missing. The property owner is not exactly an insurer of the invitee's safety, but must use reasonable care to have premises safe for visitors. The typical "slip and fall" case where a customer slips on spilled water at a supermarket is an example of this situation. The issue will be the length of time the water was on the floor; the storekeeper is under a duty to make the premises safe and a jury may have to decide if the hazard was cleaned in a reasonable time. Our kindly postman is an invitee, but his situation has a variance: the dog. We'll talk about Fido later.

A licensee is a person who has no contractual relation with the owner of the property but is permitted, expressly or implicitly, to go there. A social guest at a residence is normally considered a licensee. The homeowner is liable to a licensee only for willful or wanton injury. It is usually willful or wanton not to exercise even ordinary care to prevent injuring a licensee who is expected to be exposed to a known dangerous condition. Our good friends Helen and George are licensees. Here the issue will be whether you should have known that the sidewalk was slippery and dangerous and should you have known that the visitors would be exposed to the danger. For example, if the visitors choose not to come in the front door but, for inexplicable reasons, enter by the rear door, you might be off the hook. A licensee is due a lesser degree of solicitude than an invitee. The owner is responsible for correcting or safeguarding a licensee-visitor from dangers and hazards of which the owner is aware. Or should reasonably have been aware.

Even Felix, our hypothetical bad guy, is the recipient of a degree of care, much to the surprise of many home or business owners. A trespasser is a person who enters the premises of another without express or implied permission of the owner, for the trespasser's own benefit or amusement. The property owner is under no obligation to make the entry safe or the bad guy's progress non-dangerous, but the owner cannot prepare pitfalls or traps for the trespasser. In other words, one is not responsible for the safety of the trespasser; however, one may not create a danger. The traps that are forbidden are those that are passive and wouldn't distinguish a child from a felon. So, as to a trespasser, the owner does not have to go out of his way to protect the bad-guy; he just cannot affirmatively create the danger. On the other hand, at least in Florida, one may shoot the bad guy the moment he steps on your property. In the Sunshine State, there is no need to claim self-defense or a threat - just take out your six-gun or AK-47 and blow the bad guy away!

Two exceptions to the rules are interesting and worthy of a treatise for themselves.

Remember the postman and Fido? Remember Little Sally, the kid trespasser? They have separate rules.

Whether the postman has a valid claim against you may depend on where you live.

Every state, and many localities, have different rules concerning dog bites. Generally they are divided into the "one-bite" rule and the "no free bite rule". The basic general rule is that whenever a dog owner has knowledge of an animal's "propensity" to injure someone, the owner becomes absolutely liable for the injuries sustained. In the "one bite" areas, that propensity is usually established by the first bite! In the "no freebie" areas, there is a form of "strict liability" that means there is no need to establish "propensity"; there is a presumption of liability for the first bite.

Florida, for example, gives no dog a free-bite! However, a dog owner may post a sign on the premises with the words "Bad Dog" and be protected from some claims. It shifts the issue to propensity and knowledge that the dog is likely to chew on an offending ankle or two.

Signs and other devices are not a bar to suing for injuries to a child.

And, speaking of a child, there is a legal concept of "attractive nuisance" where a property owner can be liable for a child's injury, even if he or she is a trespasser, if the owner allows a condition to exist on the property, visible from outside the property limits, which he knows or should know is attractive to a child and would allow access by a child. Sally could see the trampoline and the pool; and the pile of building supplies; she was "attracted" and injured and her claim is not barred because she slipped through a wooden fence.

Most states allow the damages to be reduced proportionately by the degree that the injured person was responsible. If a jury determines that the injured person was negligent or otherwise somewhat responsible for his or her own injury, the verdict would be reduced to the extent of that responsibility.

As in all articles dealing with legal matters, nothing can replace the personal advice provided by an experienced and competent attorney in your own jurisdiction.