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Personal Injury

  • Premises Liability

Premises Liability

When is a landowner held responsible if someone is accidentally injured on their property?

When the injury was caused by the landowner’s breach of duty, the injured party can sue for negligence. All people, including landowners, owe the rest of the world a duty of care to behave reasonably to avoid causing harm to others. Additional duties of care can also exist because of certain relationships or can be taken on by certain actions. This concept is discussed in Negligence Articles, and it is no different for landowners than everyone else.

However, unlike everyone else, landowners and occupiers also owe special duties to certain people who enter their land.

When someone is injured and wants to sue the landowner for negligence, they might do so under a negligent activity theory or a premises liability theory, depending on the circumstances of their injury. Plaintiffs usually prefer a negligent activity theory because it is easier to prove. A negligent activity theory is appropriate if the injury was caused directly by and during an ongoing unsafe activity. In contrast, premises liability theory is appropriate when the injury was caused by a landowner’s failure to make the property safe [1]. Premises liability is a subsection of negligence and it is discussed in detail below.

Premises liability is basically the concept that someone who owns or occupies a property owes certain duties to certain people who enter that property. The extent of that duty depends on the characterization of the injured person at the time of the injury: does the entrant fit into the category of trespasser, licensee, or invitee? If the entrant is injured on a property where they are owed a duty under premises liability, and their injury was proximately caused by breach of that duty, then they may recover damages through a negligence lawsuit against the property owner or occupier.

Who owes a duty?

When someone is injured on a property, the first step to determining whether they are owed a duty is to determine what category of entrant they fall into. But when there is a duty owed, who owes that duty? The relevant owner or occupier is usually determined by who controls the property. Courts look at who possesses the property, and the primary factor is whether they were directing or managing the operations of the property [2].

Usually in a landlord-tenant situation, the tenant is in control of the property. There are exceptions when the landlord is specifically at fault for the dangerous condition, like by failing to make a repair that he was supposed to make. Independent contractors are usually responsible for any dangerous conditions they create.

For the rest of this article, “landowner” will refer to whoever is the relevant possessor or occupier of the land, regardless of whether that person is also the actual owner.

Duty owed to Trespassers

A trespasser is someone who enters property for their own purposes, with no right or invitation to do so. To be a trespasser, it is not necessary for someone to have any illegal intent, or even know that they are trespassing. A landowner owes a very limited duty to trespassers: not to cause injury by willful, wanton, or grossly negligent acts. For an act to reach the level of gross negligence, the actor must be aware of an extreme risk of danger and choose to proceed anyway. When a landowner has no reason to expect visitors, he is not obligated to keep the premises in a safe condition. In general, property owners may use their property however they choose. Usually, the possessor will not be in breach of a duty to a trespasser. The main exception is when landowners set deadly traps, like spring guns, on their property [3]. For example, in the 1956 case Marquis v. Benfer, after previous trouble with break-ins and theft, the owner of a remote home set a spring gun aimed at his front door while he was away. When a passing hunter decided to look inside the cabin to see if he might want to rent it, he was shot and suffered near-fatal injuries. The court said the shooting would only have been justified if, had the homeowner been present, he would have been justified in shooting the hunter. Absent a deadly trap like a spring gun, it is very difficult to prove that a landowner breached a duty to a trespasser.

Attractive Nuisance Exception

The attractive nuisance doctrine is an important exception to the usually narrow duty of care owed to trespassers. The doctrine applies only to artificial structures that a landowner should reasonably foresee attracting children onto a property. If the landowner should reasonably expect the presence of children and that the structure will be dangerous to children, they may owe a higher duty of care. It’s important also to note that courts only apply the attractive nuisance doctrine when the utility of the structure is low or the cost to the landowner of reducing the danger is slight, compared to the risk of the danger to children. So structures with high utility that would be difficult to make “childproof”, like train tracks, are not usually subject to the doctrine. Because the point of the doctrine is to account for children’s inability to properly assess danger, the attractive nuisance doctrine is usually only applied to children 10 and under, and rarely to children over 14. The doctrine is sometimes applied to older children, however, if their intelligence level is shown to be equivalent to that of a younger child. For instance, in the 1988 case Soledad v. Lara, the court extended the doctrine to include an older child with learning disabilities, who was injured while playing on construction site [4].


A licensee is someone who enters the property for their own benefit, but with the landowner’s consent. A licensee is owed a greater duty than a trespasser, but is not owed as much as an invitee. The difference between a licensee and a trespasser is that a licensee has the owner’s permission to be on the property, whether express or implied. The difference between a licensee and an invitee, is that unlike an invitee, a licensee is on their property only for their own benefit, not for the mutual benefit of the owner through a business relationship. If the entrant is a volunteer that enters the property to help or rescue the owner, this is not a business relationship and the volunteer is considered a licensee. Other types of licensees include gratuitous licensees, who the owner allows on the land solely for the licensee’s own benefit, and social guests.

Landowners owe licensees, like trespassers, the duty to refrain from injuring them willfully, wantonly, or with gross negligence. Unlike trespassers, licensees are also owed additional duties of care. If the landowner knows of a dangerous condition on the property, they are obligated to either fix the condition or warn any licensees they are allowing on the property. Texas courts have ruled that the landowner must have actual knowledge of the dangerous condition for this duty to arise, it is not enough if the landowner should have known of the condition but did not actually [5]. There also is no duty to fix or warn when the dangerous condition is open and obvious, so that the licensee knows of the danger as well. The landowner also has a duty to act reasonably to prevent injury to licensees when the licensee is regularly entering the property and there is a change in the condition of the property. For example, the 1968 case Veach v. Port Machine, in which a licensee was injured after tripping over a pipeline that was laid across a pathway he often used with the landowner’s permission [6]. There are, however, restrictions on landowner liability when it comes to recreational licensees: landowners usually only owe the duty they would owe to trespassers. This is to encourage landowners to allow use of their property for recreational activities.


An invitee is someone who enters property for not only their own benefit, but also for the mutual economic benefit of the landowner. The distinguishing factor is the “potential business advantage” to the owner or occupier. There are four main categories of invitees: customers, employees and contractors, public servants (like postal workers), and tenants and their guests.

Invitees are owed a greater duty of care than licensees and trespassers. The landowner has a duty to either warn invitees of or protect them from any unreasonable risk on the property that the landowner has actual or constructive knowledge of. To better understand this duty, let’s break down the language:

Either warn or protect: the landowner only has to do one of these things, not both, to fulfill his obligations to the invitee.

Unreasonable risk: Not every hazard is an unreasonable risk; for example, a natural accumulation of ice or mud on a property may pose a risk but not an unreasonable risk [7]. A risk is only unreasonable if there is a good chance of a harmful event, that a reasonable person could have predicted. Whether a particular risk is unreasonable depends on the facts of each case.

Actual or constructive knowledge: This is greater than the duty owed to licensees, because it includes dangerous conditions that the landowner should have known about, even if he didn’t have any actual knowledge. For a landowner to have the requisite knowledge, he must have actual or constructive knowledge of the condition itself, but also knowledge that the condition is an unreasonable risk. Landowners are expected to inspect their property with reasonable frequency. How frequently is reasonable depends on the facts of the case. But the longer a condition has existed, the more likely the landowner should have known of it, and the more likely a court will find there was constructive knowledge.

In the 2015 Texas Supreme Court case Austin v. Kroger, the Court ruled that, although in most circumstances an adequate warning is enough to fulfill a landowner’s legal duty, a landowner generally has no duty to warn of dangers that are open and obvious [8]. This is because the invitee has just as much likelihood of discovering the condition as the landlord. The case also laid out two exceptions for when a landowner’s warning or an invitee’s knowledge of a condition is NOT enough to fulfill the landlord’s legal obligation.

Criminal Activity Exception: A landowner is liable when they should reasonably predict criminal activity of third parties. It’s important to note that although the open and obvious nature of a dangerous condition or a warning from the landowner does not relieve the landowner of the duty to make the property safe, the landowner can use evidence of the invitee’s knowledge to show comparative negligence and reduce their portion of any damages. Read more about comparative negligence here.

Necessary Use Exception: A landowner is liable when a dangerous condition is open and obvious to an invitee, but the landowner should have predicted that the invitee would be forced to use the property out of necessity.

Slip and Fall Cases

Most premises liability cases involving invitees are slip and fall cases.

In the 1996 Texas Supreme Court Case, Motel 6 v. Lopez, the Court laid out the requirements for a plaintiff to prevail in a slip and fall case [9]. The plaintiff’s lawyer must prove:

  1. the landowner had actual or constructive knowledge of a certain condition on the property;
  2. that condition was an unreasonable risk;
  3. the landowner did not use reasonable care to lessen the risk or make safe the premises; and
  4. the plaintiff’s injuries were proximately caused by the landowner’s failure to exercise reasonable care.

When a plaintiff slips and is injured, it is not usually because of a condition created directly by the landowner. Usually, another invitee or customer has spilled something, and whether the landowner should know about the spill (and thereby have constructive knowledge) can often come down to how long the spill has been there, and if the landowner (or an employee) should have discovered it through reasonable inspection. The plaintiff’s lawyer must show that the landowner either had actual knowledge of the condition, or had a reasonable chance to find out about the condition, to fulfill the notice requirement. This can be a difficult requirement to fulfill. In the 1998 Texas Supreme Court case Wal-Mart Stores v. Gonzalez, the Court decided that evidence of footprints, dirt, and cart-marks through spilled macaroni salad was not enough to prove the spill had been there a long time before the plaintiff slipped in it [10]. While this evidence showed it was possible the spill had been there a long time, it did not prove it was probable. As seems to be typical in similar cases, the Court held there was not enough evidence to prove that Wal-Mart had constructive knowledge of the spill, and therefore could not be held liable. How long is long enough for constructive knowledge depends on the circumstances in each case. At the most extreme, ordinary care pertaining to the use of certain machines, like those that dispense soda or ice, requires the owner to keep constant watch, because the likelihood of spills is so high [11].

Changing Statuses

Sometimes, an entrant can enter a property as an invitee or licensee, but then lose their elevated status. This means a licensee could become a trespasser, or an invitee could become a licensee or a trespasser. This can happen when, for their own purposes, an invitee leaves the part of the property that they are invited to, and wanders onto a part of the property they are not invited to. For example, if a customer at a store enters an area restricted to employees, they are no longer owed the duty of an invitee [12]. Whatever status the entrant has at the time of the injury is the one that determines the duty they are owed by the landowner.

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