Proving Fault in Accidents on Dangerous or Defective Property

Republished with Permission © 2009 Nolo.

Who’s responsible for accidents that occur on or around buildings and grounds?

Accidents that are caused by defective or dangerous property, either inside or outside a building, are called “premises liability” accidents. These accidents can take place at commercial buildings (stores or offices), residences (private homes or rentals), or on public property (parks, streets, or public transportation).

Premises can be dangerous for many reasons -- faulty design, shoddy construction or building materials, poor maintenance, or dangerous clutter. Dangerous premises can lead to slipping, falling, tripping, or having something hit or fall on you.

If a dangerous property condition causes someone to be injured, who, if anyone, is legally responsible? Here are the general guidelines for premises liability accidents.

The Basic Liability Rules for Premises Accidents 

There are two basic rules to determine who is responsible for a premises accident. 

Rule One: The Owner Must Keep the Property Safe

The owner or occupier of property has a legal duty to anyone who enters the property -- as a tenant, a shopper, or a personal or business visitor -- not to subject that person to an unreasonable risk of injury because of the design, construction, or condition of the property. The reason for this rule is simple: The owner has control over the safety of the premises and the visitor does not. For example, if the owner of an apartment building does not fix a broken piece of tile in the entrance hall, he or she is responsible if a visitor trips on that tile and is injured.

Rule Two: The Visitor Must Use the Property Normally

The second rule of premises liability applies to the conduct of the injured person. If a person gets injured while acting in an unexpected, unauthorized, or dangerously careless way, the property owner or occupier is not responsible.  For example, if a guest swings down the stairs on the handrail, the handrail breaks, and the guest is injured, the owner will not be held responsible.

What About Injured Employees?                                                                                        

These rules extend to employees who are injured on their employer’s property; however, employees must file a worker’s compensation claim rather than a private injury claim.

Who is Responsible: The Owner or the Occupier?

Often, the owner of a property is different from the occupier. For example, the owner of a building may be different from the business renting the building to run a retail store, or a home may be owned by one person and rented (and lived in) by another.

If the owner and occupier of a property are different, who is responsible for a premises accident? The rules differ depending on what type of property is involved, and even then the determination of who bears responsibility can be tricky.

Below is a discussion of the general rules, but here’s the bottom line: Always file a notice of claim against both the owner and the occupier. It is the responsibility of their insurance companies to decide which one, or both, is responsible for your accident.

Commercial Property

If you are injured at a store, office, or other business, whether the owner or occupier is legally responsible for your accident is usually determined by where the accident occurred and what the lease or other business contract says about such liability. You should notify the business about your accident and injuries. The business’s insurance company will either handle your claim itself or pass the matter on to the building owner’s insurance company.

Private Residences

The rules of legal responsibility for accidents occurring on private residences are fairly simple, and depend on the type of residence.

Rented apartment. If you are a guest or tenant who is injured in an accident on rental property, the party responsible who is responsible for maintaining the area or condition that caused your accident is on the hook. This is how that responsibility is usually divided:

The landlord is responsible for everything outside the apartment (hallways, stairs, entrances) and for the immovable things inside (floors, walls, fixtures, appliances that came with the apartment).The tenant is responsible for the movable things inside an apartment.

An exception to this rule is that when the tenant knows of a dangerous condition to something immovable inside the apartment (like a broken floorboard) but does nothing about it. In that case, the tenant, along with the landlord, may be legally responsible for an injury caused by the dangerous condition.

Private home. If you are injured in an accident caused by a dangerous or defective condition at a private home, the owner of the home is responsible. If the entire home is rented out, the tenant might also be responsible.

Accidents on Adjoining Properties

In an accident that occurs at the edge of two properties -- for example, at a fence on a neighbor’s property line, or on a cracked sidewalk -- it may not be immediately clear whose property caused the accident. In these situations, file an initial notice of claim against owners of both properties and let them sort out which one will respond to your claim.