INJURIES OCCURRING ON LAND OWNED OR POSSESSED OR CONTROLLED BY OTHERS
Premises liability relates to injuries occurring on land owned, in possession of, or controlled by another and includes all manner of injuries and falls including, swimming pool accidents, slipping on wet substances, falling objects, stairs that are in ill repair or do not meet the requirements of an applicable building code, hidden obstacles, parking lot injuries from improper curbs, holes in paving and many, many other sources. Liability can also extend to “…claims such as toxic torts, false imprisonment claims of shoppers detained by store personnel, assaults and batteries by other persons also on the premises, dog bite injuries, and defamation.” For a more extensive discussion of Premises Liability law and the damages applicable to such claims, See generally, South Carolina Damages, Volume Two, Chapter 19, Premises Liability, by Warren Moise and Daryl G. Hawkins; and South Carolina Practice Manual, Volume Two, Premises Liability, Daryl G. Hawkins & Warren E. Moise. This is an area of law which has existed in written forms since the Norman Conquest of England in 1066, and there are references to suggest some earlier language to define applicable duties and remedies.
The law of Premises Liability is mostly “common law”, sometimes referred to as “judge made law”. When there is no statute passed by the legislature, or regulation imposed by the Executive branch of the government, decisions by the judiciary can provide the “rules” that apply to a particular type of case.
The duties a landowner owes to a person on the premises are generally determined by the “status” of the injured person of being an “invitee”, a “licensee”, or a “trespasser. Children and adults are treated differently when the Court considers the duty owed by a possessor of land. Other classifications require additional consideration such as examining the duties of Lessor (landlord) to Lessee (tenant). See generally, Prosser on The Law of Torts, and its many progeny.
An invitee is a person who comes on the land with express or implied permission and for the benefit of the owner occupier. The highest duty is owed to invitees and includes a duty to go out and discover risks and fix them or warn of the risk. See, e.g., Crocker v. Barr, 305 S.C. 409 S.E.2d 368 (South Carolina Supreme Court 1991); and Shipes v. Piggly Wiggly, a 1977 decision by our Supreme Court.
A licensee is a person who comes on the land either with permission (consent) of the owner/occupier or some other privilege to visit the premises. However, the licensee is there for his or her own purposes and not specifically to benefit the owner/occupier, though some benefit may collaterally be derived by the owner/occupier. A guest at a party is generally considered a licensee. See, e.g., Neil v. Byrum, 288 SC 472, 343 S.E.2d 615 (SC Supreme Court 1986 ) and stating,
“A licensee is a person who is privileged to enter upon land by virtue of the possessor’s consent. The possessor is under no obligation to exercise care to make the premises safe for his reception, and is under no duty except:
(a) To use reasonable care to discover him and avoid injury to him in carrying on activities upon the land.
(b) To use reasonable care to warn him of any concealed dangerous conditions or activities which are known to [him], or of any change in condition of the premises which may be dangerous to him, and which he may reasonably be expected to discover”
The licensee is owed a lesser duty than the invitee.
Adult Trespassers have the least amount of protection owed to them but even trespassers have some long recognized rights. The general duty is to not cause intentional injury or cause injuries from willful or wanton conduct. See, e.g., Nettles v. Your Ice Co., 191 SC 429, 4 SE2d 797 (South Carolina Supreme Court 1939).
Damages can include Pain and Suffering, Disfigurement, Emotional Distress including psychiatric, psychological and other mental trauma, Apprehension, anxiety, depression, sexual dysfunction, and loss of enjoyment of life, Lost Income-both past and future, Loss of Future Earnings Potential, Medical Expenses-both past and future, and all other damages including past, present and future.
LOSS OF CONSORTIUM DAMAGES
Loss of consortium, is the loss South Carolina recognizes that a spouse suffers whenever their own spouse is injured or killed. The damages include loss of companionship, support, love, affection, society,comfort, solace and guidance, as well loss of income.
NO DUTIES FOR CERTAIN RECREATIONAL USE BY PERMISSION AND WITH NO FEES OR CHARGES FOR USE
See, SC Code of Laws, section 27-3-10 and the following describing the limited circumstances under which no duties are owed by the owner/ occupier of land to a person who sought and received permission to use the property for recreational purposes.
We have represented people injured on premises controlled by others in a variety of circumstances including slip and falls in grocery stores and shooting deaths on hunting property among many other settings. We would appreciate the opportunity to help you, a friend or family member with any questions you have regarding these types of liabilities and injuries and to potentially represent you or them in a claim.
These notes are for guidance and general knowledge but are not intended to be legal advice and may not be relied upon as such. Questions seeking legal advice need to be asked of a lawyer and you should contact our office to set an appointment with a licensed lawyer.