What can you do to protect yourself if someone falls on your property?
As we have discussed in other articles, your duty as the “landowner” depends on why the visitor was on your property. If you invite a friend over to watch the Eagles, Pirates or Steelers game, that friend is deemed a “licensee,” not an invitee. These words are not used in the ordinary sense or general meaning. The fact that you invited your friend over does not render your friend an invitee. His invitation is for social purposes. He is not there solely to benefit you, it is a mutual benefit. He is not there to give you his business, as if you were selling something out of your home. Therefore, your duty is to warn him of conditions which he might not be expected to discover. “Don’t use the upstairs bathroom, it will overflow,” is an example.
However, if your child has a pink ride-on, battery powered Power-wheels Barbie car on the front lawn, and it is daylight, he can be expected to see it and not to trip over it. So the first thing to determine is, if the person entering your land is a licensee, your duty is to warn of hidden or non obvious dangers. A pile of leafs on your front lawn is a pretty obvious condition, easily visible during daylight hours. Tree branches are as well. If a social guest slips on leafs, or trips on a tree branch that was plainly visible in the daylight, it is likely he would not prevail if he sued you.
On the other hand, if one of the 5 wooden steps leading to your house’s front porch is loose, that would be a condition of which you need to warn the licensee before he encounters it. He would not be expected to discover it until he first encountered it. You don’t have to repair it and make it safe, as if he were a business invitee, but you would have to warn him that it is loose BEFORE he steps on it. If you don’t, and he falls, he would have a winnable “premises liability” lawsuit against you.
Can he sue you? People ask us that all the time. Sure, he can sue you. This is America. Anyone can sue anyone, generally speaking. He can sue you even if it were an open and obvious condition and he were a mere licensee coming to your home to watch TV. What you mean is, “if he sues me, would he win?” While we cannot guarantee outcomes, we can say that the licensee (social guest) is not entitled to a warning about a condition on your land which is plain, open and obvious but simply was not seen by the licensee. Why not? He is expected to discover obvious conditions on your property. IF you’re not sure whether a potentially hazardous condition is open and obvious, the simple solution is this: WARN the licensee (social guest) about it. Again, you don’t have to make your property foolproof but you should warn about any potentially dangerous condition, to be safe. An email would be nice (LOL) but if it is a verbal warning, make sure three people heard you give it, so your lawyer can prove you gave it. Is this overkill? Maybe, but so what?
You have heard the expression, “Better safe than sorry.” What will a verbal warning or an email warning cost you? Not much. What will a lawsuit cost you? Time and possibly money out of your pocket. Try this: “Hey buddy, my front step is loose. Be careful. Don’t step on it.” Now he comes over to watch the game, he forgets, he steps on it, his foot goes through the board and he suffers a compound fracture of his ankle requiring two surgical procedures, gets RSD (a severe nerve injury), and on and on. He is out of his job as a construction worker for 9 months and has $56,000 in wage losses.
Your homeowner’s personal liability insurance is only $100,000, which is a quite common coverage. His lawyer demands $250,000. His lawyer wants you to contribute out of pocket to any settlement. Sure would have been easier to have given the warning. Why? Your lawyer might then have had the case dismissed on “summary judgment” if he were able to prove you had warned your “friend” that the front step was loose.