37 Premises Liability

• Library: Elements of Civil Causes of Action (SCBar) (2015 Ed.)

37 Premises Liability

A. Definition

Premises liability is a negligence action in which the owner or occupier¹ of land is held liable for violating a duty to protect the defendant from a defect in the premises. Control of the premises is a critical issue as one who has no control owes no duty.²

B. Elements

In order to recover in any negligence action, the plaintiff must show:

(1) a duty of care owed by the defendant to the plaintiff
(2) a breach of that duty by a negligent act or omission
(3) damages proximately resulting from the breach.³

Sometimes the damages element is separated from proximate causation to create four elements.⁴

C. Elements Defined

1. A Duty of Care Owed by the Defendant to the Plaintiff

In a premises liability action, the duty owed is determined by the status of the plaintiff. The categories of status and the concomitant duties of care are as follows:

a. Invitee

An invitee enters the premises with express or implied permission for a purpose benefitting the owner or occupier.⁵ Invitees include patrons of stores,⁶ workers invited on the premises,⁷ patients in a medical office,⁸ and public works employees.⁹ Firefighters and police officers may be considered invitees.¹⁰ A defendant owes an invitee a duty of due care to discover risks and take safety precautions to warn of or eliminate unreasonable risks¹¹within the area of invitation.¹² Even where a defect is obvious, there may still be a duty to warn or repair if it is foreseeable the invitee will encounter it.¹³ If the invitee has a handicap of which the defendant is aware, it must be considered in determining the duty.¹⁴ Among the risks against which the defendant must protect the plaintiff is foreseeable crime.¹⁵ In Bass v. Gopal, Inc.,¹⁶ the South Carolina Supreme Court adopted "... the balancing approach to determining foreseeability in the context of whether a business owner has a duty to protect its invitees from criminal acts of third parties.''

The South Carolina "Accessibility Act" — S.C. Code § 10-5-210 — was not intended to impose on merchants a duty to continuously inspect and maintain floors for foreign substances or to create a higher standard of care in foreign substance slip and fall cases to physically disabled individuals than to other patrons.¹⁷

Under ordinary circumstances, absent some evidence of some substantial level of control of a business, an employee of a store does not have an affirmative duty to maintain safe premises merely because of his or her status as an employee.¹⁸

b. Licensee

A licensee is one who has consent¹⁹ or a privilege to enter the premises but does so for his or her own purpose rather than for the benefit of the owner or occupier of the land.²⁰ Social guests are licensees²¹ as are those persons given implied consent to cross the premises for their own benefit.²² A guest of a dues-paying member of a private non-profit club enters not by right, but by the permission of the member, and is a licensee.²³

South Carolina has never recognized the so called "firefighter's rule." The Supreme Court of South Carolina has said it is not part of the state's common law,²⁴ and firefighters and police officers may be considered licensees.²⁵ The court has described the duty owed to a licensee as follows:

The possessor is under no obligation to exercise care to make the premises safe for a [licensee's] reception and is under no duty toward him except:

(1) To use reasonable care to discover him and avoid injury to him in carrying on activities upon the land.
(2) To use reasonable care to warn him of any concealed dangerous conditions or activities which are known to the possessor, or any change in the condition of the premises which may be dangerous to him, and which he may reasonably be expected to discover.²⁶

c. Trespasser

A trespasser is one who enters or remains on the land of another without that person's permission or legal privilege.²⁷ A possessor of property owes no duty to a trespasser except to do no wilful or wanton injury. ²⁸

d. Children

For purposes of determining the duty of care owed, a child is generally one who is under 14 years of age.²⁹ The duty of care may be proportional to the child's inability to foresee and avoid dangers.³⁰ Those under 14 are judged by the conduct expected of a minor of like age under the circumstances.³¹ Thus a child under 14 who has knowledge of and appreciates a risk may be barred from recovery.³² The age is largely unimportant to the duty if the child is an invitee since the same duty exists toward children and adult invitees.³³ A property owner may owe a heightened duty to children beyond that owed adult trespassers or licensees where a dangerous instrumentality is involved.³⁴ The South Carolina Supreme Court has said a possessor of land has a duty, beyond that owed to an adult, to children, whether trespassers or licensees, under two circumstances:

(1) ... where the owner or occupier of grounds brings or artificially creates something thereon which from its nature is especially attractive to children, and which at the same time is dangerous to them, he is bound, in the exercise of social duty and ordinary offices of humanity, to take reasonable pains to see that such dangerous things are so guarded that children will not be injured by coming in contact with them.
(2) ... although the dangerous thing may not be what is termed an 'attractive nuisance' ... yet where it is so left exposed that they are likely to come in contact with it, and where their coming in contact with it is obviously dangerous to them, the person so exposing the dangerous thing should reasonably anticipate the injury that is likely to happen to them, from its being so exposed, and is bound to take reasonable pains to guard it, so as to prevent injury to them.³⁵

In Henson v. Int'l Paper Co.,³⁶ the South Carolina Supreme Court clarified the law regarding the duty to child trespassers. First, it held that the attractive nuisance doctrine does not require that the injured child was attracted onto the defendant's property by the very temptation that caused the injury. It then said that by recognizing a duty to protect children from dangers to which they will not be attracted, and disregarding the element of the attraction onto the property, any significant distinction between attractive nuisance and unguarded dangerous condition outlived its usefulness and the better view is that there is only a single exception to the trespasser's rule in premises liability suits. That exception is for dangerous conditions that injure children. Finally, the court adopted the Restatement (Second) of Torts § 339 and held that future premises liability cases brought by or on behalf of child trespassers should be decided in accordance with the principles outlined in that provision.

Even a dangerous condition may not create liability when it is a natural condition of the land.³⁷

e. Persons off the premises

Ordinarily there is no liability to persons off the premises.³⁸ There is, for example, no duty with regard to the safety of an abutting sidewalk unless imposed by statute or the possessor of land created an unsafe condition or has a special property interest in the sidewalk.³⁹ There is also generally no duty to one injured on a public highway adjacent to the property.⁴⁰ Thus, the South Carolina Supreme Court had held that the owner of land that abuts a highway is not liable to travelers for conditions occurring on that highway that are normal and natural and not the result of artificial conditions.⁴¹ At common law there was also no liability for a falling tree or limb causing injury off the premises.⁴² However, modern law holds that a possessor in a residential or urban area has a duty to use reasonable care to protect those outside the land from unreasonable risk of harm from defective or unsound trees.⁴³

2. A Breach of That Duty by a Negligent Act or Omission

Breach of duty is an essential element of a cause of action for premises liability as in any negligence action.⁴⁴ A breach of duty exists when it is foreseeable that conduct may likely injure a person to whom a duty is owed.⁴⁵ In "slip and fall on a foreign substance" cases, the courts refuse to allow plaintiffs to dispense with a showing of actual or constructive notice of the hazard and consistently reject arguments that a defendant created a foreseeable risk of harm and should be held liable for failing to exercise due care in reducing or eliminating the risk of harm.⁴⁶

For a plaintiff to recover for injuries caused by a dangerous or defective condition on the defendant's premises it must be shown that:

a. a specific act of the defendant created the condition;
b. the defendant had actual knowledge of the condition; or
c. the defendant had constructive knowledge of the condition.⁴⁷

In "slip and fall cases," which many premises liability actions are, constructive notice is shown by proving a foreign substance had been on the floor for a sufficient time to be discovered and removed in the exercise of ordinary care.⁴⁸ A merchant, however, is not required to continuously inspect its floors for foreign substances.⁴⁹

While a property owner may have a duty to keep the premises in compliance with applicable building codes, that duty would only apply to codes in effect and governing the property.⁵⁰

3. Damages Proximately Resulting from the Breach

The plaintiff must show the breach of duty was the proximate cause of the injury.⁵¹ The South Carolina Supreme Court has said:

Proximate cause requires proof of: (1) causation in fact and (2) legal cause.
Causation in fact is proved by establishing the injury would not have occurred "but for" the defendant's negligence. [citation omitted] Legal cause is proved by establishing foreseeability. [citation omitted] Although foreseeability of some injury from an act or omission is a prerequisite to establishing proximate cause, the plaintiff need not prove that the actor should have contemplated the particular event which occurred.

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