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Negligence as Basis for Recovery

Premises liability involves the responsibility of property owners to maintain safe conditions for people coming on or about the property.  When an accident or injury occurs to a visitor or tenant living on another person’s property, the owner of the property is legally liable if it can be proved that his/her negligence led to the injury.  The liability of a possessor of real property to the injured is determined on the basis of the negligence on the part of the possessor.

General principles of the law of negligence apply to fix the liability of an owner or possessor.  In order to impose liability, the person sought to be charged must owe the claimant a duty to exercise reasonable care.

The elements of negligence are[i]:

  • a duty that the defendant owes to the plaintiff;
  • a breach of that duty by the defendant;
  • a causal connection between the breach and the plaintiff’s injury; and
  • actual injury.


An owner/operator’s liability for injuries that result from an alleged dangerous condition on the premises depends on the scope of the defendant’s duty of care toward the plaintiff and the determination of whether that duty has been breached.  The relationship between the plaintiff and the owner/operator is a material factor in determining the degree of care required of the land owner.  The degree of care varies depending on whether the plaintiff was an invitee, a licensee, or a trespasser.  The owner/operator of property owes the highest degree of care to an invitee.  An invitee is a person who enters the premises of another in answer to an express or implied invitation of the owner/operator or for their mutual advantage.   An owner/operator owes an invitee a duty to exercise ordinary care to protect him from risks of which the owner is actually aware and also those risks of which the owner should be aware after reasonable inspection.

The most common type of premises liability related accident in the U.S. is a slip and fall accident.  There are countless places where premises liability accidents may take place, such as shopping malls, apartment buildings, and grocery stores.  A threshold requirement for a slip-and-fall claim is that the premises owner/operator had actual or constructive knowledge of the premises defect.  In slip-and-fall cases, the courts have required that the actual or constructive knowledge requirement be met in one of three following ways.  The invitee must prove that:

  • the owner/operator put the foreign substance on the floor;
  • the owner/operator knew that it was on the floor and negligently failed to remove it; or
  • the substance was on the floor so long that, in the exercise of ordinary care, it should have been discovered and removed.


A plaintiff can prove actual or constructive knowledge of the dangerous condition by showing only that the owner/operator created the dangerous condition[ii].

The general rule in premises liability law is that homeowners owe no duty to protect trespassers against potential hazards.  Trespassing children are an exception.  In the case of a nuisance to children, attractive nuisance doctrine is applied to impose negligence.  According to the attractive nuisance doctrine a landowner is held liable for injuries to children trespassing on the land when the injury is caused by a hazardous object or condition on the land that is likely to attract children who are unable to appreciate the risk posed by the object or condition.  For example, a swimming pool is a strong attraction for children and could lead to a liability judgment against the pool’s owner.  The owner must take all necessary steps to prevent accidents, such as building an adequate fence around the pool.  In applying the attractive nuisance doctrine, the condition that trespassing children, because of their youth, do not discover the dangerous condition or realize the risk involved is fulfilled only when the injured trespassing child did not in fact realize the risk.  The ability to appreciate danger varies with the age of the child and there can be no recovery under the attractive nuisance doctrine where the child is of sufficient age and mental capacity to look out for himself under the circumstances presented[iii].

Another doctrine applied to impose liability for negligence is the doctrine of the last clear chance.  According to the doctrine, the negligence of the plaintiff does not preclude a recovery for the negligence of the defendant where it appears that the defendant, by exercising reasonable care and prudence might have avoided injurious consequences to the plaintiff notwithstanding the plaintiff’s negligence.  In order for the doctrine to be applied, the plaintiff must prove that[iv]:

  • the plaintiff was in a position of peril of which s/he was unaware or from which s/he could not extricate;
  • the defendant actually discovered or should have discovered his/her peril; and
  • after the defendant actually discovered or should have discovered plaintiff’s peril, the defendant had a reasonable opportunity to avoid the accident.


However, an owner of a business establishment is not considered to be the insurer of the safety of his/her patrons and need only keep the premises in a reasonably safe condition for use in a manner consistent with the purposes of the premises[v].

The mere fact that someone is injured while on another’s premises does not create a presumption of negligence on the part of the owner[vi].  In order to recover for injuries sustained on another’s premises, the injured party has the burden of proving a breach of duty on the part of the owner to exercise reasonable care.  The burden is met only where the evidence indicates that the defendant’s negligence was the most probable or likely cause of the occurrence and that no other factor can reasonably be ascribed as the cause of the accident[vii].

[i] Magarian v. Hawkins, 321 F.3d 235, 238 (1st Cir. Mass. 2003).

[ii] Richardson v. Wal-Mart Stores, 963 S.W.2d 162, 165 (Tex. App. Texarkana 1998).

[iii] O’Keefe v. South End Rowing Club, 64 Cal. 2d 729 (Cal. 1966).

[iv] Thomas v. Dispenza, 214 So. 2d 387, 389 (La.App. 3 Cir. 1968)

[v] Rachal v. Brookshire Grocery Stores, Inc. (Brookshire Grocery Co.), 336 So. 2d 1014, 1017 (La.App. 3 Cir. 1976).

[vi] Walker v. Union Oil Mill, Inc., 360 So. 2d 894, 897 (La. Ct. App. 1978).

[vii] Ned v. Hertz Corp., 356 So. 2d 1074, 1076 (La.App. 4 Cir. 1978).

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