Premise Liability: Duty of Landlords and Other Landowners

By Laura Marie Payne

  1. DUTY OF LANDOWNERS TO VISITORS ON PREMISES
    1. Substance on The Surface Causing Slip and Fall
      1. Duty of Care of Landowner – although an owner of property is not an insurer of the safety of a person on the premises, he owes a duty of reasonable care to persons coming upon the land. An accident occurring upon the premises does not in and of itself establish negligence. It is the burden of plaintiff to establish that the landowner violated his duty of care. However, it is the duty of the landowner to keep the premises in a “reasonably safe condition for use.” When a foreign substance on the floor causes a patron or tenant to slip and fall, the questions to ascertain are as follows:
        1. what was the substance that caused the fall;
        2. did the owner have notice of the substance;
        3. was the substance placed there by the owner;
        4. could the owner have prevented the substance from being on the floor.

        Spargue v. Lucky Stores, 849 P.2d 320 (Nev. 1993)

      2. Strict Liability – If the business owner or one of his agents caused the substance to be on the floor, strict liability may be imposed as a foreign substance on the floor is usually not consistent with the standard of ordinary care.
      3. Notice to the business owner – if the presence of the foreign substance on floor is a result of actions other than the business owner or its employees, liability will lie only if the business had actual or constructive notice of a substance on the floor and fails to take action to remove it from the floor.
      4. Status of the guest on the premises – landowner liability is no longer based upon the status of the person injured on the premises. Whether the person is a trespasser, licensee, or invitee are not relevant in determining the landowner’s duty to the person on the premises. Owners or occupier of land acted reasonably under the circumstances.Turpel v. Sayles, 629 P.2d 1290 (Nev. 1985)
    2. CONSTRUCTIVE NOTICE OF THE LANDLORD If the landowner has actual knowledge of the substance on the floor or there is substantial evidence from which a jury can infer the landowner had notice of the substance on the floor, liability will be found against the landowner. If it can be established through credible testimony that the substance had in fact been on the floor for a long period of time, a jury may infer that a landowner had notice of the object on the floor and liability may be found. In order to show constructive notice, a plaintiff must show an alleged defect was visible and apparent for a sufficient length of time prior to the accident so as to permit the defendant to discover and remedy the condition. Gordon v. American Museum of Natural History, 67 N.Y. 2d 836. In most cases involving constructive notice, the issue has been whether sufficient evidence exists from which a jury could infer that a foreign substance had been on the floor for an appreciable length of time in order to permit business employees to discover and remedy the defect. However, some states have found that constructive knowledge of the landowner may be inferred when there is evidence that an employee of the owner was in the immediate vicinity of the dangerous condition and could have easily noticed and removed the hazard. (See Hughes v. Hospital Authority of Bolton County, 301 S.E. 2d 695) The issue of constructive notice of the defendant’s negligence is generally left to the jury to determine whether the landowner acted reasonably under the circumstances.
  2. CONDOMINIUM ASSOCIATION LIABILITY
    1. Duty to Maintain Common Areas. Nevada Revised Statute NRS 116.3107 places a duty of the condominium association to maintain common areas unless otherwise provided in the declaration. In Nevada, the courts have not yet addressed the issue of the association’s duty to maintain the common areas. However, the statute is clear that in the absence of a declaration to the contrary, the association has a duty to maintain, repair and replace common elements of the condominium complex. Generally, a landowner in Nevada must act as a reasonable person under all circumstances to prevent injury to others.
    2. Duty to Maintain Adequate Security. Although Nevada has not specifically addressed the issue of adequate security in condominium complexes, California has addressed the issue. In California, the courts have specifically addressed the question of whether landlords and condominium associations are under a duty to employ security measures that might have prevented an attack on a tenant. In finding for the landowner, the court stated that since none of the defendants had notice of prior similar incidents occurring on the premises, the plaintiff could not establish “high degree of foreseeability” necessary to impose upon the defendants the duty to provide extraordinary physical security measures. Pamela W. v. Millisom, 30 Cal.Rptr. 2d 695 (1994). Therefore, in reviewing cases where a tenant claims that inadequate security caused an attack, one should ask the following questions:
      1. Have there ever been other attacks?
      2. What type of security could have prevented the attack?
      3. What type of security measures were in place at the time of the attack?
      4. Did the landowner have notice that a potential attack could take place?
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