Premises liability is a type of negligence action brought by someone who claims to have been injured by a condition located on a defendant’s property. The duty of care a defendant owes a person injured on the premises depends on the legal status of the injured party – that is, whether the plaintiff was an invitee, a licensee, or a trespasser. A defendant owes the highest duty of care to an invitee, the next highest duty of care to a licensee, and the lowest duty of care to a trespasser. The higher the duty is, the more obligations are imposed on a defendant to keep the premises safe, which in turn makes it easier for a plaintiff to show a breach of that duty and prevail on a premises liability claim. Whenever our clients face premises liability claims, we first determine what level of duty of care was owed to the plaintiff and then proceed to evaluate the alleged dangerous condition.
An invitee is someone who enters a defendant’s premises with the defendant’s knowledge and for the benefit of both parties. Common examples of invitees can include business patrons, club members, on-duty employees, mail carriers, and tenants. The duty of care a defendant owes to an invitee is the duty to warn about AND make safe any unreasonably dangerous condition on the premises that the defendant knows of or should have known of. Therefore, a defendant breaches the duty of care owed to an invitee if defendant fails to warn about OR fails to make safe any unreasonably dangerous condition that defendant has actual or constructive knowledge of. As a result, the duty of care owed to an invitee is more easily breached when compared to the duty owed to a licensee or trespasser.
A licensee is someone who enters a defendant’s premises with the defendant’s permission, but only for the benefit or convenience of the licensee or someone other than the defendant. Examples of licensees can include members of defendant’s household, social guests, a neighbor who comes to borrow tools, a person soliciting for charity, and a volunteer rescuer. The duty of care a defendant owes to a licensee is the duty to warn about OR make safe any unreasonably dangerous condition on the premises that the defendant has actual knowledge of. A defendant’s constructive knowledge of an unreasonably dangerous condition is not enough to prevail in a premises liability claim brought by a licensee. Thus, a defendant breaches the duty of care owed to a licensee if defendant fails to warn about AND fails to make safe any unreasonably dangerous condition that defendant actually knows about. As a result, it is generally harder for a licensee to prevail in a premises liability claim when compared to an invitee.
A trespasser is someone who enters a defendant’s premises without any right, lawful authority, invitation, or permission, and merely for their own benefit. Examples of trespassers typically include uninvited, unexpected, or unwanted entrants. The duty of care a defendant owes to a trespasser is a duty not to injure a trespasser willfully, wantonly, or by gross negligence. A defendant does not owe a duty to keep the premises in a reasonably safe condition for a trespasser. Therefore, a defendant typically breaches the duty of care owed to a trespasser if defendant intentionally injures a trespasser without the lawful right to do so. As a result, a trespasser is generally the least likely to prevail in a premises liability claim when compared to an invitee or licensee.
After determining the status of the plaintiff and the duty owed, we evaluate the dangerous condition alleged to have caused the injuries. Specifically, the question becomes whether the alleged condition was open and obvious or, if not, whether the defendant acted reasonably and met the applicable standard of care. The Texas Supreme Court has made it clear that even an invitee owed the highest standard of care cannot recover if the alleged dangerous condition was open and obvious. Even if not open and obvious, a defendant is not liable for dangerous conditions, even to an invitee, if the defendant acted reasonably to warn and make the condition safe or, in the case of a licensee, adequately warned. Careful evaluation of the applicable duty and available defenses leads to successful resolution of premises liability claims for our clients.