Property exposure Featured

7:00pm EDT December 26, 2008

Premises liability is a term used to describe the legal responsibility that owners and occupiers of property have for accidents and injuries that occur on their property. Premises liability claims can range from slip and fall incidents to pool drownings to construction site accidents.

It is important to note that anyone who possesses and controls property faces potential exposure to property liability claims; it is not simply ownership of property that creates a duty.

“For instance, a general contractor or a real estate agent could be liable for a slip and fall on a piece of property they possess and control when the owner would have no liability,” says Mark Masters, senior partner at Secrest Wardle.

Smart Business spoke with Masters about premises liability and how landowners and property managers can protect themselves from claims and address the legal duties for which they are responsible.

What type of legal issues can arise from premises liability?

Everything. The typical cases include slips and falls, dog bites, structural collapses, fire losses and assaults. The claims made can be brought against the property owner, the property manager, a tenant or others responsible to maintain the site. Additionally, it is important to recognize that the nature of the claim, and the issues that arise, will depend upon whether or not the claimant is on the site as a business guest, a social guest or a trespasser.

There are, however, unusual and complicated cases. These cases are usually driven by two factors: severe damages and a responsible party with no money. In these cases, claimants will look for the nearest ‘deep-pocket’ defendant despite that defendant’s lack of liability.

Premises owners and managers need to be hyper-vigilant. It is essential to have a structured approach to the maintenance of your property and to make and keep accurate records. If an accident happens or even if someone claims an accident happened, it should be thoroughly investigated and the results well-documented, regardless of the claimant’s credibility. Keeping a photographic record of the conditions at the time of a claimed accident can be particularly helpful. Those claims that appear to be the least plausible are frequently the ones most likely to become lawsuits.

How can landowners and property managers protect themselves from premises liability claims?

Beyond the actual maintenance of the property and dealing with claims that might be made even when there are not obvious maintenance problems, there are at least two ways: (1) establish and maintain good relationships with your customers and/or tenants, and (2) make sure your contracts contain the necessary protective language.

In regard to relationships, in addition to keeping your premises safe and well-maintained, it is important to have procedures in place designed to defuse the natural reaction of someone who is upset over having been injured. An offer of nonmedical assistance, such as calling a family member or friend, or an offer to call for an ambulance when combined with simple courtesy can help reduce the likelihood that a claim will be filed. If the identity of the person is known, following up to see how he or she is doing offers another opportunity to proactively manage a potential claim.

In regard to the appropriate contract language, provisions that address the scope of the contract, indemnity and your status as an ‘additional insured’ are among the provisions that work to protect you. In that regard, all of your vendor contracts should be reviewed and similar provisions should appear in your commercial leases.

What legal responsibilities do they have for the safety of the premises?

A possessor of property has the following general duties to business guests:

? Duty to inspect

? Duty to repair

? Duty to warn

? Duty to make safe

If someone is a residential tenant, then there are additional statutory duties owed by the landlord. If someone is a social guest, then the only duty is to warn of potential hazards. If someone is a trespasser, however, the only duty is to avoid intentional harm. When minor children are involved, there are other considerations that require the input of your lawyer.

Taken together these steps can effectively mitigate the liability of the premises owner or property manager for accidents that occur on their property.

MARK MASTERS is senior partner at Secrest Wardle. Reach him at (248) 539-2844 or mmasters@secrestwardle.com.