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What is Premises Liability?

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Posted on September 10, 2021

Overview: Premises Liability

Premises liability is legal term in personal injury cases where the injuries caused to a person were the result of some type of unsafe or defective condition on someone’s property. In lawsuits for premises liability, an injured person holds a property owner responsible for any damages arising out of their injury on that person or entity’s property.

In Utah, owners that occupy a property must make a reasonable effort to maintain a safe environment for visitors to their property. However, failure to keep their property safe for visitors results in “premises liability,” or liability for injuries to visitors. Common situations that may give rise to premises liability lawsuits are: 1) slip and fall accidents, 2) animal and dog bites, or swimming pool drowning accidents. In fact, there are hundreds of ways a property owner can be liable, but normally for known safety issues, like a trampoline, broken furniture, or a slippery floor.

Establishing a Premises Liability Case

Premises liability cases are like other types of personal injury cases in that a person must establish negligence on the part of the owner or entity before one can win a lawsuit. The elements of negligence are, first, that the at-fault person owed a duty of care to the victim. Second, that duty was breached. Third, that breach of duty caused the victim’s injuries. Lastly, those injuries resulted in economic and non-economic damages.

The main issue in many premises liability cases is the first element, the duty owed to the injured person. In Utah, we classify this duty depending on the person visiting the property. We classify the person as 1) an invitee, 2) a licensee, or 3) a trespasser. There are different duties owed depending on which of these three the victim is classified. Additionally, the owner has a continuing duty to reasonably inspect their property for dangerous conditions or activities on their property.

An Invitee

An invitee is a person who enters on onto the owner/entity’s property that is held open to the public. For example, a customer to a department store would be classified as an invitee. The owner/entity will be liable to an invitee if they can prove that 1) the property owner knew or should have known of an activity or condition on the property that presents an unreasonable risk of harm to the invitee, 2) that the owner/entity knew or should have known that the invitee would be unlikely to discover and/or protect themselves from the dangerous activity or condition; and 3) that the owner/entity did not use reasonable care to repair, replace, or adequately warn about the activity or condition that injured the victim.

A Licensee

A licensee is one who enters onto property with the express or implied permission of the property owner. A property owner is liable for the injuries of a licensee for the exact same as the invitee classification, except they must show that the licensee in fact did not discover or realize the danger of the condition or activity on the premises before he was injured.

A Trespasser

A trespasser is an individual who enters onto property without invitation, permission, privilege, or consent of the owner/entity who owns the property. As a general rule, a property owner does not owe trespassers any kind of duty to use reasonable care to put their property in a safe condition.  Therefore, if someone trespasses onto another’s property and winds up injured, they may not have any recourse.  Although intentional conduct by the owner is prohibited, like setting traps, or having a dangerous animal loose on the property. However, there are also statutory and caselaw exceptions:

Trespasser Exception: Known Trespassers

If a property owner knows or has reason to know that trespassers frequently intrude upon a limited area of his property, and they do so in an area that subjects them to danger, that property owner may be liable for injuries the trespassers sustain because of that same danger. For example, if there is a popular hiking trail through a property owner’s land and the owner knows that trespassers frequently enter his/her land and walk past a giant unmarked cliff. The owner may be liable for trespassers injured falling on the cliff because the owner knows that trespassers frequently use his property for the popular hike.

Trespasser Exception: Artificial Conditions

The property owner may be liable for trespassers injuries if they 1) maintains an artificial condition on the property (think of anything not natural, such as a man-made river, a swimming pool, a garden fountain, etc.) 2) that the owner/entity knows is likely to cause death or serious bodily harm to another, 3) the property owner knows trespassers come onto the land near that artificial condition, and 4) the trespassers are injured due to that artificial condition.

Trespasser Exception: Children

This is almost the same as above except that the artificial condition must be one that the owner knew or should have been known would attract children to it. Courts will employ a balancing test on the type of artificial condition to determine whether the owner is liable. This balancing test weighs the cost of removal vs. the risk to children. For example, a trampoline on an owner’s property would certainly balance in favor of liability on the owner for trespassing children as the risk to children is high and the cost of removal is low. However, having a large mining operation on your property would not subject the owner to be liable to trespassers, even though trespassing children might be attracted to the mine because courts would balance this in favor of the landowner as the cost of removal is extremely high and the risk to children low.

Limitations to Liability

Once the classification is established, then there are limitations to what the person can recover depending on where they were injured. For example, someone injured out of the state of Utah while on vacation will almost always have to use the law of state in which they were injured to determine if they can recover. Some states have a contributory negligence statute, which means that if the victim is even one percent (1%) at fault, they can be denied the ability to recover.

Luckily in Utah we are a comparative negligence state, which means that even if the injured victim contributed to their injuries, so long as they are not more at-fault than the owner/entity they can recover for their injuries. For example, when an injured person is twenty-five percent (25%) at fault, but the property owner is seventy-five percent (75%) at fault. Although in this situation, the victim’s recovery would be reduced by their percentage of fault (25%).


If you or someone you know has been injured on the property of another, even if you were trespassing, you should consult with one the personal injury attorneys at We Win Injury Law. We can advise you on your rights and whether or not you will be able to recover from the property owner for your recovery.