Premises Liability

Premises liability involves the responsibility of property owners to maintain safe conditions for people coming on or about the property. Until a recent favorable decision of the Georgia Supreme Court, this was one of the most difficult types of cases to get past a defense motion for summary judgment. Now, however, while still difficult, more such cases are reaching juries, and the most meritorious of such cases are resulting in significant verdicts.

Status on the Property: Invitee / Licensee / Trespasser.

Invitee. Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.

The invitation may be express, implied from known and customary use of portions of the premises, or inferred from conduct actually known to the owner or his authorized agent.

In Georgia, guests of an apartment tenant are business invitees on the apartment premises.

Licensee. A licensee is a person who: (1) Is neither a customer, a servant, nor a trespasser; (2) Does not stand in any contractual relation with the owner of the premises; and (3) Is permitted, expressly or impliedly, to go on the premises merely for his own interests, convenience, or gratification. The owner of the premises is liable to a licensee only for willful or wanton injury.

The owner of the premises is liable to a licensee only for willful or wanton injury. It is usually willful or wanton not to exercise ordinary care to prevent injuring a licensee who is actually known to be, or is reasonably expected to be, within the range of a dangerous act or condition.

Social guests are not invitees in the legal sense, even though they may have been expressly invited. A social guest at a residence is normally considered a licensee. However, there are exceptions in some situations where a business transaction is involved in the social visit.

Active negligence is distinguished from static negligence, and the owner must always exercise ordinary care regarding active negligence.

Trespasser. 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 duty of the owner to a trespasser is not to prepare pitfalls or mantraps for the trespasser or to injure him willfully or wantonly, provided that there is no duty to anticipate his presence or to keep the premises in a safe condition.

Once the owner is aware of the trespasser's presence, or should reasonably anticipate his presence from the circumstances, then the owner has a duty to exercise ordinary care to avoid injuring the trespasser by any active negligence.

Recreational Land. When the owner of a land or water area makes the property available for public recreational use without charging admission (as distinguished from a parking fee), the owner has no duty of care to keep the premises safe for entry or use by others, or to give any warning of a dangerous condition, use, structure or activity on the premises.

Criminal assaults on business premises. If a business has reason to foresee a danger of criminal assaults upon customers and other business invitees, the business may have a duty to take reasonable measures to deter, prevent or guard against such criminal assaults.

Many "negligent security" claims involve sexual assaults or shootings at hotels, motels and apartment complexes.

Most suits against businesses due to criminal assaults on the premises involve evidence of prior similar assaults on the same property.

Courts may also consider evidence that the business was aware of similar crimes in the immediate vicinity, or at its other similarly situated locations. Many court decisions deal with how similar an earlier crime must be in order to put a business on notice of the risk of future assaults. Evidence of prior crimes is generally critical to success in handling these cases.

Intensive investigation and expert testimony are generally essential in establishing foreseeability of criminal assaults and what reasonable security measures the business could and should have used to deter and prevent crime on the premises.

Victims of criminal assaults particularly sexual assaults often have psychological as well as physical injures for which they may be entitled to compensation.

Suggestions for victims of criminal assaults:

  • If appropriate, ask for referral to a Rape Crisis Center or Council for Battered Women.
  • Ask the police or prosecutor about services available through a victim/witness assistance program.
  • Ask the prosecutor, in writing, to require restitution as part of any plea bargain, and to inform you when any negotiated plea will be entered, so that you can be present. However, restitution payments from the criminal are usually too little and too late.
  • You can sue the criminal for your damages if he was caught and convicted. While you can seldom collect much from him, his testimony from prison can help establish how easy it would have been for adequate security measures to deter him.
  • Promptly consult an attorney who is experienced in investigating and prosecuting negligent security cases.

Attractive Nuisance

  • This theory arose to protect trespassing children in circumstances in which their presence could be reasonably anticipated on premises on premises where there is an unreasonable risk of injury to children. For a detailed analysis of attractive nuisance in Georgia, click here.

Slip / Trip and Fall.

  • The basis for liability is the owner's superior knowledge of the danger to persons going upon the property. It is when the danger is known to the owner and not known to the person injured that a recovery is permitted.
  • Liability of the owner or occupant of premises may be based on constructive knowledge by showing that the owner failed to exercise reasonable care in inspecting the premises, but recovery under that approach generally requires proof of the length of time the dangerous condition was allowed to exist.
  • It is a plaintiff's knowledge of the specific hazard which precipitates the slip and fall which is determinative, not merely his knowledge of the generally prevailing hazardous conditions or of the hazardous conditions which he observes and avoids.
  • The "superior knowledge" standard may be inapplicable where the plaintiff's awareness of the danger is counterbalanced by other factors militating against a finding of voluntariness.
  • A plaintiff seeking to prove a slip and fall because of slippery wax, oil or other finish placed on defendant's floor, must at a minimum, show that the defendant was negligent either in the material he used in treating the floor or in the application of the finish.
  • While there are legal rules that can be stated with some clarity in these cases, the application of the rules to specific cases tends to be extremely fact-intensive. Case analysis must include a subjective evaluation of whether a judge or jury will feel, from a common sense standpoint, that it is reasonable to impose liability in the specific facts of the case.
  • Hazards to people on adjacent public road. Georgia law provides that a landowner whose land is immediately adjacent to a public way may not, without incurring a duty, maintain an artificial condition so situated that persons lawfully using the public highway may, by accident or some force not their own fault, be injured by the artificial condition.
  • Questions of superior or equal knowledge of a hazard, which are essential to premises liability claims arising on the premises, are still important but not essential in claims due to a hazard created on the adjacent roadway. This is because such claims are not based upon the defendants' negligence in failing to discover and correct a hazardous condition but on its negligence in actually creating the hazardous condition.