A property owner is not liable for injuries off the premises that are directly caused by actions occurring off the premises[i]. An occupier of premises generally has no greater duty than does the public regarding conditions existing outside his/her premises[ii]. The only duty a property owner bears is to refrain from doing anything on or to the sidewalk which would cause or contribute to a vice or defect[iii].
However, a landowner cannot escape liability by the mere fact of his/her status as non-owner of that property[iv]. An owner of adjacent land owes a duty to exercise reasonable care in the maintenance of his/her property to prevent foreseeable injury that might occur on the adjoining property[v].
In order to make a determination regarding whether a landowner is liable, the duty-risk analysis must be employed which requires an examination of four factors:
- whether the landowner’s conduct was a cause in fact of the accident;
- whether the landowner owed a legal duty encompassing the particular risk of harm to which the plaintiff was exposed;
- whether the landowner breached that duty; and
- what damages the injured sustained.
An owner or possessor of land may be liable for injuries incurred by persons off the premises as a result of natural or artificial conditions on the land[vi]. Activities on the land which give rise to a hazardous condition off the premises may also result in a duty being imposed on the landowner to remedy that hazard.
A possessor of land is subject to liability to others outside of the land for physical harm caused by a structure or other artificial condition on the land, which the possessor realizes or should realize involves an unreasonable risk of such harm, if[vii]:
- the possessor has created the condition, or
- the condition is created by a third person with the possessor’s consent or acquiescence while the land is in his possession, or
- the condition is created by a third person without the possessor’s consent or acquiescence, but reasonable care is not taken to make the condition safe after the possessor knows or should know of it.
The courts have recognized four closely related “assumed duty” exceptions to the general rule that there is no duty to prevent accidents on adjacent property that a person neither owns nor occupies. They are[viii]:
- a person who agrees or contracts, either expressly or impliedly, to make safe a known, dangerous condition of real property may be held liable for the failure to remedy the condition.
- a person who has created a dangerous condition may be liable even though not in control of the premises at the time of injury.
- a lessee who assumes actual control over a portion of adjacent property also assumes legal responsibility for that adjacent portion, even though none of the adjacent property is included in the lease.
- where an obscured danger exists on land directly appurtenant to the land owned or occupied, and where that danger is near a place where invitees enter and exit the landowner’s or occupier’s property, the owner or occupier owes a duty to those invitees entering and exiting to warn of the danger.
The “agrarian rule” provides that a landowner owes no duty to persons who are not on the landowner’s property and therefore a landowner is not responsible for any harm caused to them by natural conditions on the land[ix].
In cases involving the liability of a possessor of land to one injured beyond the borders of the possessor’s property, the doctrine of absolute or strict liability may be applicable. If one has an object on his/her own premises that is dangerous, or a substance that s/he is constantly using, which has to the potential to escape and injure others, whether above or under the ground, and upon the property of his/her neighbor, or that which his/her neighbor has the right to use, s/he must answer for the consequences[x].
[i] Brenneman v. Stuelke, 654 N.W.2d 507, 510 (Iowa 2002).
[ii] Felts v. Bluebonnet Elec. Coop., 972 S.W.2d 166, 168 (Tex. App. Austin 1998).
[iii] Garner v. Mem’l Med. Ctr., 872 So. 2d 1229 (La.App. 4 Cir. Apr. 14, 2004).
[v] Gayden v. Rochester, 148 A.D.2d 975 (N.Y. App. Div. 4th Dep’t 1989).
[vi] A. Teichert & Son v. Superior Court, 179 Cal. App. 3d 657 (Cal. App. 3d Dist. 1986).
[vii] Whitt v. Silverman, 788 So. 2d 210 (Fla. 2001).
[viii] Hirabayashi v. North Main Bar-B-Q, 977 S.W.2d 704, 707 (Tex. App. Fort Worth 1998).
[ix] Whitt v. Silverman, 788 So. 2d 210, 213 (Fla. 2001).
[x] Kinnaird v. Standard Oil Co., 89 Ky. 468 (Ky. 1890).