What Factors Impact the Landowner’s Duty Under Premises Liability Law?

Several factors govern whether or not the owner (or possessor) of real property has a duty to act and/or mitigate possible hazards under premises liability law. No single factor is dispositive. A court evaluating whether or not liability exists will balance several factors when deciding whether or not the defendant land owner (or tenant, or possessor of property) owed a duty to the injured party.

Among the factors courts consider:

1. The foreseeability of the harm suffered by the plaintiff. As a rule, the more foreseeable the harm, the more likely it is that the court will find a duty existed.

2. The burden on the defendant (and the consequences to the community) if the court imposes a duty. While courts won’t refuse to find a duty simply because doing so would place a burden on the defendant, if the burden on the defendant significantly outweighs the foreseeability and/or likelihood of injury, courts may be less likely to find that a duty existed. Also, courts are less likely to find a duty where an entire community would face heavily burdensome restrictions or obligations in order to prevent similar harms in the future–unless the likelihood of those harms (and the costs to the injured persons) make the balance weigh in favor of finding a duty.

3. The connection between the defendant’s conduct (or lack of action) and the injury suffered by the plaintiff. Where the defendant’s conduct–or failure to act–had little impact on the injury’s occurrence or could not have prevented the injury, it’s less likely that a court will find a duty. For example: if a plaintiff gets hit by a meteor while attending a barbecue at the land owner’s residence, it’s unlikely the property owner could have done anything to avoid that harm. There is no connection between the land owner’s conduct and the injury.

4. The degree of certainty that the plaintiff suffered injury. This relates to the evidence for injury (and causation) and whether or not the plaintiff can actually document that an injury occurred.

5. The moral “blameworthiness” of the defendant’s conduct (or lack of action). No one would “blame” a homeowner for failing to construct a meteor defense net in his or her backyard. In fact, most people would find it odd if a landowner did so. However, a person who knowingly releases rattlesnakes in his or her yard probably deserves to be held responsible if someone gets bitten and injured by those snakes.

6. The general policy in favor of preventing future harms. Courts try individual cases, but their decisions also reflect a general societal goal: the prevention or deterrence of similar harms in the future. For this reason, courts more commonly find that a duty existed in cases where the risk and foreseeability of similar future injuries are high.

7. The availability and cost of insurance (to protect against the type of harm at issue). The existence of insurance against a risk suggests that the risk is not only foreseeable, but likely enough that reasonable people purchase insurance to protect themselves (and others) against it.

Courts may consider other factors also, but these are among the most important.