When is a homeowner or business owner responsible for injuries occurring on his or her property? Like many legal questions the answer is “it depends.” As a general rule the owner is required to exercise reasonable care to maintain the premises in a safe condition for those who come on the property. An owner must correct or warn against any dangerous condition of which he is aware or reasonably should have known of. The duty applies not only to those invited onto the property but others such as delivery and repair persons, door to door salesmen and those soliciting contributions. If one is a trespasser, the property owner owes only a duty to refrain from intentionally injuring him.
A property owner is not an insurer of the safety of those on his property. Everyone has a duty to exercise reasonable care for their own safety. This includes the duty to see and appreciate an obvious danger. Generally, one is not liable for injuries resulting from an open and obvious condition. For example, should someone step off a retaining wall on your property, you are probably not liable. In the same way if someone came on your property right after an overnight freeze or snow storm and slipped on snow and ice before there has been a reasonable time to clear it, there should be no liability. But, the Tennessee Supreme Court has ruled that an open and obvious danger does not automatically relieve one of a duty of care and is merely one factor in assessing the relative fault of the parties. Tennessee follows the modified comparative fault rule in negligence cases. That means that the negligence of both the injured person and the person sued is compared. If the fault of the injured person is 50% or more, there is no recovery. If the fault of the injured person is less than 50% there is recovery, which is reduced in proportion to the fault of the injured party.
The Supreme Court has explained that an “open and obvious” danger does not in itself relieve an owner of a duty of care. The duties must be analyzed with regard to foreseeability and gravity of harm and the availability of alternate conduct that would have prevented the harm. If it is reasonably foreseeable that the condition might result in serious injury, even if open and obvious, and it would not pose a significant burden to the owner to correct or warn against the condition, then the fault of the owner and the fault of the injured party must be compared to determine whether compensation is owed. If it is not reasonable to foresee that a condition on the property would cause injury, then there is no liability. The somewhat absurd example would be if a teenager decides to walk on his hands along a deck rail and falls. That would not be a reasonably foreseeable event.
A landowner has a duty to correct or warn against latent or hidden dangers of which he is aware. For example, a rotted step of which the owner was aware, a hole in a lawn covered by long grass, or a sharp metal stake hidden in grass, or a wasp nest out of sight underneath a patio chair.
Common sense and diligence can go a long way to protect one from liability for possible injuries on property. Being aware of the condition of one’s property, fixing things that need to be fixed and warning against those things which are hidden dangers which can’t or haven’t been fixed.