An occupant or possessor of a premise owes an implied responsibility to maintain the premises free of defects. Since an occupant or possessor is best able to identify and prevent any harm to others, they will be held responsible and liable for any defects arising on such premises[i].
Generally, control is the test that measures the responsibility of an occupant or possessor of real property, for injuries caused by a dangerous or defective condition of the premises[ii]. Other factors considered while determining the liability of an occupant or possessor include[iii]:
- whether s/he has title to a property; and
- whether s/he has a superior right to possession of a property which is originally in the possession and control of another.
Factors considered in control test for determining the premises liability includes[iv]:
- whether defendant managed the daily operations on the premises;
- whether defendant has the right and power to admit or exclude individuals or company to or from the premises;
- whether defendant has the responsibility of maintenance and repair;
- whether defendant is liable for bills, taxes, and wages; and
- what were the responsibilities of parties under the lease.
Any occupant or a possessor having control over premises has a duty to keep the premises in repair. The fact that others had a duty, which they failed to perform, cannot be taken as a defense by an occupant or possessor of a dangerous premise[v]. Hence an occupant or a possessor will be liable if their acts or omissions created a sufficiently foreseeable risk of harm and if they did not use reasonable care in the maintenance and operation of his/her property[vi].
However, the responsibility of an occupant or possessor of premises does not extend to an injury caused by the act of a third person over whom they had no control and for whose acts they are not responsible. But, where an occupant or possessor commits a breach of a duty of care that s/he owed to the injured person to take adequate measures to control such third person and to afford protection against such an injury, then liability will be imposed upon such occupant or possessor.
[i] Love v. Schmidt, 26 Okla. 648 (Okla. 1910).
[ii] Hart v. Fletcher Land Co., 175 F. 985, 986 (C.C.D.R.I. 1909).
[iii] Anderson v. Marriott Hotel Servs., 2002 Conn. Super. LEXIS 3749 (Conn. Super. Ct. Nov. 25, 2002).
[iv] Scheer v. Cliatt, 133 Ga. App. 702 (Ga. Ct. App. 1975).
[v] Bryant v. Schrage, 75 Ohio App. 62 (Ohio Ct. App., Butler County 1945).
[vi] Iannelli v. Burger King Corp., 145 N.H. 190 (N.H. 2000).