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Limitation on Property Rights

Premises liability is the liability of a landowner for torts that occur on his/her real property.  Landowners are responsible for injuries suffered on their property when they are negligent or act without due care.  The liability of owners and occupiers of property will vary depending on the legal rules and principles in place in the state where the premises liability injury occurred.

A land owner exercises an indefinite right to use, control, and dispose of his/her property[i].  However, every one must use his/her property as not to injure that of his/her neighbor.  This principle of law finds expression in the maxim ‘sic utere tuo ut alienum non laedas’, means ‘one must so use his own rights as not to infringe upon the rights of another'[ii].  When a landowner in the use of one’s own property causes injury to another by willful misconduct or negligence, ‘sic utere tuo ut alienum non laedas’ is the fundamental principle on which liability of a landowner can be predicated. However, the maxim does not mean that one must never use his own property in such a way as to do any injury to his neighbor.  It means only that one must use his/her property so as not to injure the lawful rights of another[iii].

Additionally, an owner or occupant of property must use the premise in a way that will not be a nuisance to other owners and occupants in the same community.  Anything which annoys or disturbs one in the free use, possession, or enjoyment of his/her property or which renders its ordinary use or occupation physically uncomfortable will become a nuisance.  It is the duty of the state to restrain such acts[iv].

The law of private nuisance is founded on the fundamental rule that every person should so use his/ her own property as not to injure that of another.  When the possessor of real property creates a nuisance by the use of the land, s/he is subject to liability[v].

Moreover, an owner or possessor of premises incurs absolute liability when:

  • the owner’s conduct was in violation of certain statutes, ordinances, or regulations;
  • an injury is suffered by another as a result of an occurrence on the premises of the defendant, regardless of the possessor’s fault; or
  • the owner keeps in his/her property certain substances which would cause injury to others when it is allowed to escape.


Generally, a private premises owner is liable for two types of negligence in failing to keep the premises safe:

  • negligence arising from an activity on the premises; and
  • negligence arising from a premises defect.


Negligent activity and premises defect are independent theories of recovery.  A recovery on a negligent activity theory requires that the injury be a contemporaneous result of the activity itself than by a condition created by the activity.  When a person is injured as a result of a condition on the premises than any conduct occurring at the time of injury, the owner has only a premise defect cause of action[vi].

An owner of a premise is not an insurer of the safety of anyone on the premises.  An owner of a premise cannot be held liable for an injury incurred by reason of the condition of his/ her premises in the absence of negligence or maintenance of a nuisance that caused the injury.

One of the most commonly used limitations on a property owner’s liability is that the injured person was partially at fault for the incident.  A visitor has a duty to exercise reasonable care for his/ her own safety.  Where that care is not exercised appropriately, the plaintiff’s recovery may be limited or reduced by his/ her own negligence.  Most states adhere to a comparative fault system in personal injury cases.  According to the comparative fault system, an injured person’s legal damages will be reduced by a percentage that is equivalent to his/ her fault for the incident.  For example, when it is decided that an injured person was 25% liable for an accident and the total damages were $10,000, s/he will receive only $7,500.

When a third person is also liable for the incident, the landowner’s liability is limited.  In a leading case in the state of New York, a pedestrian who was hit by a car in the parking lot of a strip mall was unable to sue the defendant mall owner, because the driver and owner of the vehicle were 100% liable for the plaintiff’s injuries[vii].

However, a claim for negligence must be initiated within the Statute of Limitations. When a victim delays seeking compensation, s/he is said to have ‘slept on his rights’ and the claim will not be heard.

Moreover, even a negligent landowner’s duty is limited when the injured person was not ‘invited’ to the property.  When a visitor is merely tolerated or is a trespasser, the landowner’s duty is minimized.

[i] Akron v. Chapman, 160 Ohio St. 382, 388 (Ohio 1953).

[ii] Fleming v. Lockwood, 36 Mont. 384, 388 (Mont. 1907).

[iii] Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc., 114 So. 2d 357, 359 (Fla. Dist. Ct. App. 3d Dist. 1959).

[iv] Baum v. Coronado Condo. Ass’n, 376 So. 2d 914, 915 (Fla. Dist. Ct. App. 3d Dist. 1979).

[v] Reaver v. Martin Theatres of Florida, Inc., 52 So. 2d 682, 683 (Fla. 1951).

[vi] Jenkins v. Home Depot USA, Inc., 2007 U.S. Dist. LEXIS 39075, 16-17 (E.D. Tex. May 30, 2007).

[vii] Morales v. Lia, 238 A.D.2d 786, 787 (N.Y. App. Div. 3d Dep’t 1997).

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