Premises Liability Can Arise From Ownership, Possession, or Control of Land
“OWNERSHIP, POSSESSION, AND CONTROL” ARE DISJUNCTIVE REQUIREMENTS
“Premises liability” is a branch of law that creates liability for people who own, possess, or control real property–meaning both land and improvements on land (buildings and other fixtures).
Although many people think of premises liability as “owner liability,” in reality a person does not need to be the owner or title holder for liability to apply. The law describes premises liability duty as springing from “ownership, possession, or control”– and the disjunctive “or” means that any one of the three is sufficient for liability to attach, if the facts otherwise support the existence (and breach) of a duty.
CONTROL IS A VITAL ELEMENT OF PREMISES LIABILITY
The law, and public policy, often favor placing the burden of avoiding harm on the person or persons most capable of preventing the harm in the first place. This makes sense in the premises liability context, because the person in control of property–generally, the owner or the owner’s representative–is more likely to know, and more capable of knowing, the property’s condition than a stranger who happens to enter the property for some other purpose.
For this reason, it also makes sense that people who possess or control real property can be held liable under premises liability law. Owners, people in possession of property, and people who control property all have a better ability to assess the property’s condition, and remove or reduce hazards, than other people.
Thus, the duty arising under premises liability law springs, in large part, from the idea of control.
Since the person who controls real property is, generally speaking, in the best position to ensure the property does not create an unreasonable risk of harm to others, the law (and public policy) are more willing to impose a duty of care upon that person. The duty can thus apply to the property’s owner, a lessee (tenant), or any other person who has control of the property or the right to possess it. Use rights alone (for example, via an easement) may or may not be sufficient to establish a duty that may give rise to liability under premises liability law; an examination of the facts and circumstances applicable to each individual case is required to determine whether or not a duty arises, and the extent of the duty and possible liability.
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