Slip & Fall Information Center
NJ Landowners Duty to Prevent Slip and Fall Accidents
As many as 1 out of every 20 people in the United States seeks emergency medical treatment as a result of a slip and fall accident. "Slip and falls" (and "trip and fall accidents") account for a large share of personal injury lawsuits in this country, lawsuits that proceed under the theory that the defendant landowner (as well as the occupier or person responsible for condition of the premises) was negligent in some fashion. If you are the party injured as a result of a slip and fall accident and wish to prevail in an action for negligence, you must prove the following:
- That the landowner had a duty to conform to a specific standard of conduct or that the premises were required to be in a certain condition
- That the landowner breached that duty to conform
- That the breach of the duty to conform was both the actual and proximate cause of your injury, and
- Although seemingly obvious, that you were, in fact, injured
Of course, sidewalks and parking lots aren't the only areas on property (commercial or private) that pose a risk of slip and fall accidents. Traditionally, it's not so much where the accident occurred that determines the potential liability to the landowner as much as it is how you, as a person who was injured while on the premises, is classified. At common law, the duty that a landowner owes you when you enter the premises depends on your status as an entrant. In short, you can be classified as an invitee, a licensee or a trespasser and the duty that an owner, occupier or possessor of the land owes you used to depend solely on that classification.
It should be noted that New Jersey courts have moved away from relying only on the classification of an entrant to determine liability for a slip and fall. In Hopkins v. Fox & Lazo Realtors, the court recognized the trend of turning away from strict application of the common law classifications:
"...whether a person owes a duty of reasonable care to another would turn on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy. These factors include the relationships of the parties... ."
The "relationships of the parties", then, still influences whether you, as a person injured in a slip and fall accident, will be able to recover for your injuries.
The highest duty of care owed by a landowner is to an "Invitee". Under New Jersey law, commercial property owners are potentially liable to those people deemed to be invitees for an injury resulting from a slip and fall if the owner knew or should have known about the hazard and should have prevented the hazard through routine maintenance. For example, a store owner that knows a patch of sidewalk regularly collects water that freezes overnight would likely be held liable for injuries suffered by someone who slipped and fell on that icy patch.
There are actually two different kinds of invitees:
- Business Visitor. As the term would suggest, you are considered a business visitor if you share a business relationship with the landowner or have a business purpose for being on the premises (even if you don't ultimately end up making a purchase). If you are an employee of the landowner, or the occupier of real estate (a tenant) you are also a business invitee. The landowner owes an absolute duty to repair any dangerous conditions on the property as well as a duty to ensure the property is free of hazards and generally safe for the public.
- Public Invitation. New Jersey courts accept a rather broad definition of public invitation to include any person on land open to the public or segment of the public of which you are a member (e.g., hospital visitors, users of public parks, visitors to a mall, or visitors in an apartment complex or condominium complex).
In more general terms, an invitee is someone the property owner actually wants on the property. As a result, the landowner must use reasonable and ordinary care to keep the property reasonably safe for invitees, including:
- Warning invitees of non-obvious and dangerous conditions of which the landowner is aware, but which may not be obvious to a visitor
- Using ordinary care in all operations conducted on the premises
- Making reasonable (for example, regularly scheduled) inspections to discover hazards which are foreseeable in the operation of a business or property and make repairs as necessary
Reasonable care is a question of fact that is - open to interpretation in many cases - and there is no established definition of what constitutes sufficient ordinary care. Many times expert testimony is used to establish what is reasonable under the circumstances.
A second classification of entrant is that referred to as a" Licensee'. Simply put, you are considered a licensee if you enter the premises with the landowner's express or implied permission. A social guest at your home is an example of a licensee. The easiest way to distinguish between and invitee and a licensee? If you are on the premises for the benefit of the landowner you are an invitee. If, however, you are on the property for your benefit, you are a licensee.
A licensee is only entitled to what can be described as an intermediate duty of care which means that the landowner may be liable only if he knew or should have known that a dangerous condition existed and would reasonably have been expected to recognize the condition as being dangerous. A duty to remedy the condition or to warn of such a condition exists only if that condition creates an unreasonable risk of harm the owner knew about but which you are not likely to discover until it's too late.
The third category of entrant is called a "Trespasser". You would be classified as a trespasser if you have no right or privilege to be on the premises. A landowner essentially owes no duty to such an individual other than to refrain from wantonly inflicting injury upon a trespasser who does not intend to commit a crime.
No duty of care is owed to an undiscovered trespasser. Once discovered, however, a trespasser is afforded some protections. The landowner will, if you are a "discovered" trespasser, be expected to exercise ordinary care to warn you of artificial conditions that involve a risk of serious bodily harm/death or, in the alternative, remedy the unsafe conditions. The owner must also exercise reasonable care whenever operating activities on the land.
There is one additional category of entrant to whom the landowner owes a duty to exercise care to avoid reasonably foreseeable risks of harm caused by artificial conditions on the land: children as trespassers.
This duty is based on the "attractive nuisance doctrine" which stands for the premise that children are often attracted to such dangerous conditions and are unable to appreciate the risk (e.g., abandoned vehicles or unfenced swimming pools), the landowner should have been aware of the dangerous condition and it is likely to cause injury and the expense of fixing the dangerous condition is minimal (or is required by statute or some standard of care or code).
To determine whether you or a loved one who has suffered an injury because of a slip and fall, or a trip and fall or some other mishap on the property of another for which you may be able to recover damages, contact an experienced premises liability attorney, Francis M. Smith, in Mountainside, New Jersey. You can call for a free consultation about what happened to you or a loved one: 888-233-1272, or by email: Frank@FrankSmithLaw.com . The consultation is free. There is no obligation. There is no fee if I do not recover damages for you.