Traditionally, a landowner has owed a duty to exercise due care to keep their property in a reasonably safe condition for persons who enter upon their property. Landowners are also required to protect persons who enter upon their property from dangers that they may not discover which present an unreasonable risk of danger to them. A premises liability case may include recovery for injuries caused by slip and falls, criminal assaults, personal injuries due to hidden dangers, failure to warn of danger, dangerous construction zones, falling debris, swimming pool accidents and others.
To recover under a theory of premises liability sounding in negligence, the plaintiff must prove three elements: (1) a duty owed to the plaintiff, (2) a breach of that duty by the defendant, and (3) the breach proximately caused the plaintiff’s damages. A defendant is entitled to summary judgment by demonstrating that the undisputed material facts negate at least one of the elements of the plaintiffs claim. The question of whether a duty is owed in premises liability cases depends primarily upon whether the defendant was in control of the premises when the accident occurred. This rule is intended to subject to liability the person who could have known of any dangers on the land and therefore could have acted to prevent any foreseeable harm. Although whether a duty exists usually is a question of law, the existence of a duty sometimes depends upon underlying facts that require resolution by the trier of fact, and this may include questions regarding who controlled property at the time and place of an accident. Possession and control of property for premises liability purposes generally is a question of fact involving occupation and intent to control the particular area where an injury occurred. Actual physical possession of property at the precise moment an accident happens is not always dispositive on the question of control for premises liability purposes, if there was evidence that another party was in a better position to prevent the harm that occurred.
Further, the nature and extent of a landowner’s duty to persons coming on the property is defined by the visitor’s status as an invitee, licensee, or trespasser. This court in the past has said that a person’s status on the land is a matter left for determination by a court, not the jury. The Indiana supreme court clarified that a person’s status on the land may turn on factual issues that must be resolved by the trier of fact. The highest duty of care is owed to an invitee; that duty being to exercise reasonable care for the invitee’s protection while he or she is on the premises. As to a licensee, the duty is to refrain from willfully or wantonly injuring him or her or acting in a manner to increase his or her peril; this includes the duty to warn a licensee of any latent (non-obvious) danger on the premises of which the landowner has knowledge. Finally, the duty owed to a trespasser is the duty merely to refrain from wantonly or willfully injuring him or her after discovering his or her presence.
An invitee is a person who is invited to enter or to remain on another’s land. There are three categories of invitee: the public invitee, the business visitor, and the social guest. Licensees and trespassers are persons who enter the land of another for their own convenience, curiosity, or entertainment and take the premises as they find them. Unlike trespassers, however, licensees have a privilege to enter or remain on the land by virtue of the landowner’s or occupier’s permission or sufferance. In determining whether an individual is an invitee or a licensee, the distinction between the terms “invitation” and “permission” is critical.
An example of this type of claim is the following case from 2007. On August 31, 2007, Attorney Gladish was able to obtain a jury verdict in the amount of $(Rule 7.2 does not allow Attorney Gladish to list this amount) in a case in the Lake Superior Court, Room Six in Crown Point, Indiana. This case centered on a construction site accident where the client fell through an unguarded opening resulting in a high impact fracture of his left femur bone and hip requiring multiple surgeries. The damage done to his leg is depicted in the following x-ray taken after fixation surgery.