Slipping and Sliding All Over Town ― What are the Responsibilities of a Landowner for Winter Wonderland Conditions?

Pennsylvania weather is the source (and butt) of many jokes. Many of them rightfully revolve around the fact that we can go from feeling like summer to a blizzard in about twelve hours. Of course, with so much ice and snow upon us, one may wonder, “Hey, as a landowner, what are my responsibilities for making sure my property is safe for others?” Or, you may wonder, “You know what? As a pedestrian, shopper, or visitor to someone else’s property, what exactly do I need to consider if I get hurt in a premises liability case?” You probably have never asked those questions of yourself on a whim, but today, we’re going to do it for you.

First, it’s important to understand what we’re talking about. “Premises liability” cases are cases that revolve around the dangers of real property. Real property is land and homes. As ice and snow fall on land, any case arising out of them is a premises liability case. It’s not restricted to weather hazards, however. A pothole, an improperly elevated sidewalk, or a wooden floorboard that’s rotted and prone to collapse when you step on it will also count as premises liability hazards.

Second, it’s just as important to understand that, when it comes to premises liability, there are three strict ‘categories’ of visitor that all but dictate the outcome of any determination of liability. Deciding which one a visitor is in can be the most challenging and most pivotal part of a case like this.

There is the business invitee.

There is the social guest or licensee.

There is the dread and ever-scorned trespasser.

Invitee

The business invitee might be the most common category for these cases. This is a person who is typically on the property with the invitation and permission of the landowner and who is present for business purposes. What’s the easiest example? When you head to your local grocery store to buy beef jerky sticks. The grocery store is inviting you to come trade your money for this beef jerky, and you are there with permission. This relationship is furthering the landowner’s business interests (and your interest in the best food ever invented).

The invitee is owed the highest duty of care of the three categories. The Restatement (Second) of Torts § 343 lays out how and when a property owner can be liable to an invitee. A property owner can only be held liable if and only if he or she:

(a) knows or by the exercise of reasonable care would discover the condition, and should realize it involves unreasonable risk of harm to such invitee,

(b) should expect that they will not discover or realize the danger, or fail to protect themselves against it; and

(c) fails to exercise reasonable care to protect them against the danger.

The most important element can be found in a). In order for the landowner to be held liable, he or she needs to have actual knowledge of the defect, constructive knowledge of the defect, or to have created the defect. Constructive knowledge is best defined as the phrase used above: “by the exercise of reasonable care would discover the condition.” This is most often understood to meant that a property owner has a duty to periodically inspect and pay attention to the conditions of their property to protect invitees.

Practically, this means that most premises liability cases for invitees boils down to finding evidence of who created the hazard, if the business owner knew about it, or finding evidence (such as surveillance video) showing that it was there long enough that you can argue that the owner should have found it if they had been paying attention.

Note, of course, that any agents acting on behalf of the landowner likely have their knowledge and actions imputed to the landowner through respondeat superior. This means that if an agent of the landowner causes the hazard, that’s as good as if the landowner himself created the hazard, etc.

Lastly, when the requirement says that the landowner must exercise reasonable care to “protect” the invitees from the danger, this can typically be by fixing the hazard or warning of it.

Licensee

On its face, the standard for a licensee may seem almost identical to that for an invitee, but there is a critical difference.

The Restatement (Second) of Torts § 342 provides:

A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,

(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and

(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and

(c) the licensees do not know or have reason to know of the condition and the risk involved.

What’s the major difference? Simply put, a landowner for purposes of a licensee has no duty to inspect. Note the absence of the language saying, “by the exercise of reasonable care would discover the condition.”

Trespasser

We won’t be spending too much time on this one because it’s rare, because you shouldn’t be a trespasser, and it’s very straightforward. A trespasser is someone who doesn’t have the landowner’s permission to be on the property, just as it sounds.

In Pennsylvania, a trespasser may recover for injuries sustained on land only if the possessor of land was guilty of wanton or willful negligence or misconduct. What do those mean? Well, the courts have told us.

Willful misconduct means that the actor desired to bring about the resultant harm, or was at least aware that it was substantially certain to ensue; this means that willful conduct requires actual prior knowledge of the trespasser’s peril.

Wanton misconduct by contrast, means that an actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. It usually is accompanied by a conscious indifference to the consequences, and not a desire to bring them about; as such, actual prior knowledge of the particular injured person’s peril is not required. It is enough that the actor realizes, or at least has knowledge of sufficient facts that would cause a reasonable man to realize, that a period exists, for sufficient time beforehand, to give the actor a reasonable opportunity to take www.margolisedelstein.com means to avoid the injured person’s accident; the actor is wanton for recklessly disregarding the danger presented.

Ott v. Unclaimed Freight Company, 577 A.2d 894, 894 (Pa. Super 1990).

If you’ve been injured in an accident, contact Cohen, Feeley, Altemose & Rambo at (610) 625-2100. Consultations are always free, and your peace of mind may be only a phone call away.