The Winter of 2014 – Slip Sliding Away ... How Accumulations of Ice and Snow Affect Property Owners' Liabilities to Third Parties

The Winter of 2014 – Slip Sliding Away ... How Accumulations of Ice and Snow Affect Property Owners' Liabilities to Third Parties

Under most states’ premises liability laws, a landowner owes duty to use reasonable care to protect individuals from unreasonable risks of harm posed by dangerous conditions on the owner’s land. This duty is breached when the owner knows or should know of a dangerous condition on the premises of which the third party is unaware and failed to fix the defect, guard against the defect or warn the third party of the defect.

The “Status” of a Third-Party Visitor to the Premises Dictates the Landowner’s Duty

There are three classifications of third-party visitors that impact the landowner’s duty, and the landowner’s duty is different with respect to each of the three classifications.

Invitees

The first classification is an “invitee,” who is owed the highest the duty under premises liability law. To be considered an invitee, the person entering a premises must have done so for purposes that would have benefited the owner or occupant of the premises, or been a mutual benefit to the owner/occupant and the invitee. This type of benefit can be of a business, commercial, monetary or other tangible nature to the possessor of the premises.

Possessors of land owe four duties to invitees:

  • Possessors have a duty to maintain the premises in a reasonably safe condition
  • Possessors must exercise ordinary care to protect an invitee from unreasonable risk known to the possessor, or that should have been known to the possessor with the exercise of ordinary care
  • Possessors must warn invitees of dangers that are known, or that should have been known, to the possessor unless the dangers are open and obvious.
  • Possessors must, however, warn of open and obvious dangers if the possessor should expect that an invitee would not discover the danger or would not protect himself/herself against it
  • Possessors have a duty to inspect the premises to discover possible dangers of which they are not aware

Licensee

A “licensee” is one who is on a premises for a purpose other than business, with the expressed or implied permission of the owner or person in control of the premises. Social guests and members of the possessor’s household are generally considered licensees instead of invitees, even though they may have been expressly invited on the premises. An owner or possessor of land is liable to a licensee for injuries caused by a condition on his or her premises only if: 

  • Possessor knew or should have known of the dangerous condition, should have realized it involved an unreasonable risk of harm, and should have expected that the licensee would not have discovered or realized the danger
  • Possessor failed to exercise reasonable care to make the conditions safe, or to warn the licensee of the condition and risk
  • Licensee did not know or have reason to know the condition and risk involved

It is important to note there is no duty on behalf of the possessor of land in regard to a licensee to inspect for or warn of dangers, except for concealed or hidden dangers about which the possessor has actual knowledge.

Trespasser

A “trespasser” is one who enters upon another’s property without the owner’s or possessor’s consent. Trespassers are afforded the lowest level of care. The duty owed to a trespasser is dependent on whether a trespasser is an adult or child and whether the trespasser is known or unknown to the possessor of the land.

  • Undiscovered adult trespasser – If the owner does not know the trespasser’s presence on the land and in the exercise of ordinary care could not have known of it, the owner has no duty to either make the premises safe or warn of conditions on the premises
  • Child trespasser – A child is afforded a higher legal duty under “attractive nuisance” doctrine, under which a possessor of land is subject to liability for physical harm to children caused by an artificial condition upon the premises if the possessor knows or has reason to know that children are likely to trespass on the premises and the possessor knows or has reason to know the condition involves unreasonable risk of death or serious bodily harm

The Doctrine of Open and Obvious Risk with Respect to Premises Liability

Most states impose a limitation on the general rule that a landowner owes a duty to provide reasonable care to protect an individual by imposing restriction that a possessor of land owes no duty to protect or warn of dangers that are “open and obvious,” because such dangers, by their nature, apprise an invitee on a property of a potential hazard, which the invitee then might take reasonable measures to avoid.

The existence of the clear and obvious doctrine as a limitation on premises liability has resulted in individuals who receive injury based on slips and falls with respect to ice and snow being prevented from imposing liability on a landowner. In the event that a state is “prone to winter,” then the doctrine of open and obvious applying to snow that is readily obvious to an individual results in that individual rarely being able to impose liability on the landowner for a slip-and-fall injury.

“Black Ice” Can be an Exception to the “Open and Obvious Limitation”

Courts in several states have ruled that the individual incurring injuries as a result of a slip-and-fall on “black ice” is not prohibited from imposing liability on a landowner based on the fact that by the very nature, “black ice” is not open and obvious and, therefore, an individual cannot take reasonable actions to avoid it.

The case law regarding black ice and similar situations being not subject to the open and obvious doctrine are included in various exceptions to the open and obvious doctrine where there are “unavoidable” or “unreasonably” dangerous conditions that, even in spite of the fact those conditions may be open and obvious, they are so dangerous or unavoidable so as to still impose liability on a landowner for slip-and-fall or other types of injuries.

What Does All This Mean for the Landowner?

Based on the extreme winter conditions that most of us have faced in various states during the course of this winter season, a little extra “due diligence” with respect to making sure walkways, porches and steps are cleared of snow and salted would exhibit a level of care that would, in most instances, absolve a landowner of any liability for a slip-and-fall incident on his or her property. Although any facts and circumstances could change a landowner’s potential liability in any particular case, exercising due diligence and a little “common sense” goes a long way toward avoiding someone “slip sliding away” on the landowner’s property.