Premises liability is an area of the law that addresses the responsibility of land owners to individuals who come on the land. This is basically the liability a Landlord faces when owning property.
Perhaps the most common form of premises liability which most people hear of is the “slip and fall,” but it could also include liability against property owners for any injury on the property, even those from mass shootings such as the shooting in Virginia Tech in 2007 that resulted in an $11 million settlement.
For most of us, potential liability for personal injuries is the greatest and most likely source of liability we commonly face, and this is especially true for landlords owning rentals. Therefore, taking steps to reduce your chances of premises liability for properties that you own should be a part of everyone’s asset protection plan.
The specific standards for evaluating a premises liability case is determined by the laws of the state where the property is located. However, the factors courts most often look towards is the foreseeability of the harm balanced by the measures that the landowner could have taken to prevent the harm. In general, the more likely it is that an injury could occur on the property, the more steps the landowner should take to mitigate that risk. Therefore, the question in many of these cases is whether the landlord had any reason to be aware of a particular risk that resulted in an injury.
For example, in Virginia Tech case, there was evidence the school had some knowledge of the perpetrator’s disturbing behavior prior to the shooting, that they knew there was a gunman was on campus before the attack occurred, and that school officials had locked down their own building on campus, but failed to issue an all-campus notification for more than two hours thereafter. By contrast, in the 2012 Aurora Colorado shooting at the Cinemark movie theater, the plaintiffs alleged that the movie theater failed to employ security officers and place alarms on the doors, but the Court dismissed the case holding that the movie theater could not have foreseen the premeditated and intentional actions of the shooter.
In general, if the landlord is aware that an unreasonable risk of harm exists, appropriate steps should be taken to mitigate that risk. Of course, insurance is a key component for risk management but here are some additional tips that could reduce the chances for premises liability:
- Landlords should periodically inspect the property and assess what if any dangers pose a threat to persons on the property, document those findings, and take appropriate action to remedy those risks. Courts will generally balance the likelihood or severity of the risk with the burden on the landlord to take corrective measures, and weigh those factors based on the totality of circumstances. If the risk was highly probable and/or could result in severe consequences, those factors could tip the balance in favor of liability against the landlord. On the other hand, if the cost for corrective measures is excessively high, that could tip the balance in the landlord’s favor.
- Be proactive in seeking and requiring tenants to report potentially dangerous conditions, and do not ignore complaints from tenants regarding conditions on the property. Once you have been informed of an issue, you are on “notice” which may give rise to a duty to take corrective action to protect the tenants from further harm. Don’t let ticking bombs fester.
- Familiarize yourself with laws or customs that affect the condition of the property such as lead based paint, asbestos, mold, smoke or CO detectors, etc., as failure to comply with these established laws or standards could make the landlord an easy target. Make sure all the systems on the property are updated and conform to code requirements.
- If you become aware of incidents that cause injury or damage, you should be proactive in taking steps to prevent such incidents in the future. This is known as the “prior similar incidents” rule. For example, if you discover that there has been a rash of burglaries in the area, you may have a responsibility to take reasonable precautions such as installing locks, screen doors, or cameras.
- Require appropriate insurance for potentially dangerous activities or conditions. This could apply to tenants who want, for example, to keep pets, above ground pools, trampolines, playgrounds, etc. Of course, knowing your tenants and regulating any illegal or risky activities they may engage in is a must. This is where a solid lease agreement could be your strongest ally.
Keep in mind that, in general, you would not be liable for an injury that you had no reason to know would occur, and there must be some degree of fault that must be proven for the landlord to be liable. Incidents do happen even for the most conscientious of landlords, but being proactive and taking appropriate action as soon as you become aware of potential risks will go a long way in keeping you out of court.