The National Law Institute University,

Bhopal

Law of torts– I

semester 1

torts Project

defences to liability for dangerous premises

Submitted by : Submitted to:

Deepanshu Mandli Prof. Rajeev khare

 Certificate

This is to certify that the Project titled- defences to liability to dangerous

premises by Deepanshu Mandli who is currently pursuing his BA LLB. (Hons.) at
National Law Institute University, Bhopal in fulfilment of Law of Contracts- 1
course. It is also certified this is original research report and this project has not
been submitted to any other university nor published in any journal.

Date

Signature of student

Signature of research supervisor

Acknowledgement
This project has been made possible by unconditional support from various
people, I would like to acknowledge and extend my heartfelt gratitude to Prof.
Rajeev khare for guiding me throughout the development of this project into a
coherent whole by providing helpful insights and sharing their brilliant expertise.

I, also would like to thank the members of the library staff and computer section
for the cooperation in making available the books and accessing the internet even
during their free time. I am deeply indebted to my parents, seniors and friends for
all the moral support and encouragement.

Deepanshu Mandli
Table of contents

Certificate.....................................................................................

Acknowledgement........................................................................

Introduction..................................................................................
Introduction :
Dangerous premises liability is what holds property owners responsible for accidents and
injuries that have occurred on their property. This includes all accidents and injuries that have
occurred in and around their businesses or in their homes. Premises liability law requires
property owners to ensure the safety of any person entering their property and to take all
reasonable measures to do so. As a legal concept, there are generally cases in tandem with
personal injury in which a person's injury was caused by unsafe or defective conditions on
someone else's property. Premises liability claims are commonly based on the legal concept of
negligence, as are many claims of personal injury. Legal negligence refers to a person who fails
to exercise reasonable care, resulting in damage or injury to another person. Negligence focuses
on the failure of the person to take certain precautions and actions, as opposed to the direct
actions of the person. Land owners who are at risk of being sued in a lawsuit for property
liability should also realize that they might have claims they may pose to decrease or prevent
liability. These cases are highly factual, so whether a defence is applicable in your case will
depend on a careful investigation of the circumstances. If the injured person has reason to know
the danger that hurts them ahead of time, they cannot win their case. Responsibility of the
landowner depends on the status of the victim's tort liability. A tort is a legal term that describes
a breach in which one party causes harm, damage, or injury to another. Tort liability applies to
who is liable for the harm, damage, or injury. A claimant could be liable if, aside from the
property owner's actions and their negligence, they contributed to their own injury. There are
some legal defences open to you if you are a land owner and you are facing a premises liability
lawsuit. Proving that you were not really negligent would be the most critical defence. This
paper discusses about the occupier liability concept , obligation towards various visitors and
detail discussion of various defences available to the defendant or owner of the dangerous
premises.
Statement of problem :

Objective of study :

Method of study :

This method uses ‘doctrinal’ method of data collection and legal research.

Various cases are to be analysed to understand this doctrine.

Review of literature :

R K BANGIA-

Research question :

Hypothesis:
 Premises liability
The plaintiff must generally prove the following elements in order to prove negligence and
hence the liability of premises:

1.The owner owed a duty of care to the visitor or the injured person on their property;

2.There was a dangerous, unsafe, or defective condition on the property of the owner;

3.The owner knew of a dangerous, unsafe, or dangerous condition, but was unable to remedy the
situation;

4.That the injury occurred due to the failure of the owner to exercise his duty of care to prevent
the accident and the resulting injury.

A duty of care is generally owed to another person in any situation in which a person is likely to
be injured or inaction by the actions of another person. Infringement of this duty occurs when a
person, such as the owner of the property, does not act as reasonably or prudently as another
person would do under the same circumstances.

It must therefore be proved that the negligence of the owner of the property was the "actual and
immediate" cause of the injury alleged (also referred to as causation). After demonstrating the
other three elements of the property, the plaintiff is expected to demonstrate that due to the
negligence of the property owner a measurable loss or harm was incurred.

Occupier’s liability act , 1957

The distinction between invitees and licensees has now been eliminated with the adoption of the
Occupiers' Liability Act, 1957.

Now, the same rule applies to all lawful visitors. The occupant of the premises is expected to
observe reasonable care, known as the "Common Care Duty."

Section 2 of the Act discusses the extent of the duty of the occupant.
1. The occupant owes a common duty of care to all his visitors. Common duty of care means the
duty to take such reasonable care that the premises are safe for the visitor for the purpose for
which the visitor has been invited or allowed to do so.

2.An occupant may exclude, extend or amend his duty by entering into an agreement with any
visitor or visitor.

3.The occupant is expected to take special care of children as they are less serious than adults.

CASE LAWS

ROLES V. NATHAN

FACTS: The defendant was the owner of a house that was centrally heated by a coke-fired
boiler. In the chimney, two chimney sweepers attempted to close up a sweeping hole but died
due to the presence of carbon monoxide gas. The dead were warned about the threat, but the
orders and warnings were disregarded.

HELD: It was held that the danger was apparent and that the danger was reported to the
deceased, so the deceased appreciated the same thing. Furthermore, it was claimed that the
defendant was not negligent and thus should not be held accountable.

FACTS: The plaintiff was a Lufthansa Airlines co-pilot. The plaintiff went on to stay at a five-
star hotel in Delhi. He took a dive in the pool, his head hit the bottom of the pool, and he
suffered serious injuries. He remained paralyzed for 13 long years and died as a result. The
reason behind the injury was found to be the lack of water in the pool.

HELD: It was held that the defendants were negligent because the design of the swimming pool
was defective. The defendants were therefore held to be liable.
 DUTIES AND OBLIGATIONS TOWARDS VISITORS
Examples of victims' status in cases of on-site liability include invitees, licensees, and
trespassers. In general, an owner owes the highest treatment to the visitors. They owe the
licensees a smaller care responsibility. Lastly, owners of properties owe nothing to the
infringers.

The torts liability can be broken down as follows:

Invitees: These are clients or employees invited by the owner to visit the house. The owner of
the property is also obliged to warn all visitors of the dangers, and whether the risk of harm is
excessive. The owner of the property is therefore obliged to audit the premises to take into
account any risks;

Licensees: Licensees are social visitors who, for purposes other than business, have entered or
stayed on the premises. They have special permission on, or for, the property owner's property to
do something. The owner of the property shall be responsible for alerting licensees of the
hazardous conditions which they are aware of and if the licensee has not known or has no reason
to know of the hazardous conditions; and

Trespassers: These are persons who have entered or stayed on the premises without the property
owner's permission. State laws on trespassing vary, but a property owner has no responsibility to
warn the trespasser of unsafe conditions in general. This is particularly true if the proprietor of
the property is unaware of the existence of the trespasser. Land owners are allowed to alert
known or permitted trespassers in any hazardous circumstances.

Unique duties extend to child trespassers in that, owing to the desirable nuisance doctrine,
property owners must take special measures to avoid harm to child trespassers. This ensures that
if the owner of the property has anything on their property that will encourage kids to use it,
such as a slide, the should take appropriate care to ensure that the slide is protected because it is
likely to attract kids.
If the owner of the property is found to be liable or violated their duty of care to prevent an
accident or injury from occurring on their property, damages can be paid to the defendant. Such
harm could include:

Suffering and pain;

Hospital bills of the future and present;

Lost earnings or loss of earning capacity; and/or

Triple or punitive damage.

Case laws
Indermaur v. james
FACTS: The complainant, a gas fitter, went to the defendant's premises to inspect the gas
regulator. While doing so, he dropped from the unfenced opening of the floor and injured
himself as a result. lawsuit against the defendant was subsequently brought by the plaintiff to
recover damages for the injuries.

HELD: The three categories of visitors were identified in this case:

Invitees,

Licensee, and

Trespassers.

The court ruled that, in this case, the plaintiff was an invitee when he entered the premises for
business purposes. The court acknowledged that the defendants were aware of the risk and thus
had the responsibility to tell the plaintiff about the same thing. Accordingly, the defendants were
held responsible.

Fairman v. perpetual investment building society

FACTS: Along with his sister, the plaintiff went on to remain in a room owned by the defendant.
There was a common staircase which the defendant owned and operated.
In one of the stairs, there was a depression, the heel of the Plaintiff was trapped in the
depression, thereby hurting her. The Plaintiff brought a suit against the defendant charging that
the licensee was the Plaintiff and therefore the defendants owed them exceptional treatment.

HELD: It was held that the defendants should only be held responsible for the hidden risk and
not for the apparent danger. It was observed that if she had been patient, the plaintiff might have
prevented the accident in this case. The danger was apparent and should have been noticed by
her.

various defences available to the defendant of dangerous

premises

ASSUMPTION OF RISK AND DEFENDANT'S DUTY TO USE CARE

A landowner is not always obligated to use care to make the state of his premises stable. For
example, he owes a licensee only the minimal responsibility to warn of a recognized, latent,
dangerous disorder. Where the defect is evident, the defendant is held by certain courts, not by
claiming that the defendant was not guilty of a breach of duty, but only by claiming that all
obvious deficiencies were at risk to the licensee. This technique was not restricted to the limited-
duty case. The landowner may fulfil his obligation to use caution even in the case of an invitee if
the faulty state of the premises is entirely obvious or if he informs the invitee of its existence.
Here, too, it is often mentioned that, for this reason, the invitee assumed the risk and could not
recover. This is perhaps one way to stress that a defendant is not an insurer, and that protection
can also be accomplished only by the modicum of the plaintiff's cooperation in not knowingly
exposing himself to a known avoidable risk; after all, the defendant's responsibility is only to
keep the premises reasonably secure and often reasonably hope that the plaintiff can see and
understand the danger. When it comes to asserting a risk protection assumption, the defendant
carries the burden of evidence and is responsible for proving that the danger was evident or
apparent, or that the action was necessarily dangerous. The quality of proof is the preponderance
of the evidence, which suggests that it is more likely to be valid than not. Express risk
assumption requires demonstrating that the plaintiff expressly acknowledged the risk. This can
be achieved by a formal agreement between the parties, and is also a signed wavier form signed
by the plaintiff while performing a risky operation, such as skydiving. Issues of express risk
inference are usually determined as a matter of law by the court. To draw a verdict, the jury will
be confronted with evidence, conditions, and relevant documents that they will review. On the
other hand, implicit risk assumptions can be inferred from words and actions. In particular, there
is an implicit danger presumption when a plaintiff undertakes to conduct himself with a full
knowledge of the potential harm to him or herself and, in those cases, agrees to the risk. It is
more difficult for defendants to prove tacit inference in danger cases and usually need to analyze
the facts and circumstances surrounding a specific scenario.

Case law

Forest cove apartments , llc v. Wilson

Wilson was the result of a company owner's injury at an Atlanta apartment complex. A cleaning
and repair business which provided services to local apartment complexes was owned and
operated by the plaintiff. Subfloor repairs were among the services rendered to the defendant by
the plaintiff's firm, a management company of several apartment buildings in Atlanta. Several of
the units in the apartment complex where the accident at issue in this case occurred was
federally subsidized, and a report was submitted to the U.S. Department of Housing and Urban
Development concerning the condition of a specific unit was notified to the plaintiff. The
plaintiff went to the building to investigate the issue and noticed a major mold problem, as well
as water damage to the bathroom floor. She gave the defendant an estimate of the cost of fixing
the problem, and the plaintiff and her crew began work the following day. The joist on which the
plaintiff was standing sadly gave way, and she dropped downstairs and onto a lit stove. As a
result of the fall, the plaintiff suffered numerous injuries, and she brought a lawsuit against the
property management firm.

The defendant moved for summary judgment at the conclusion of the discovery, alleging, among
other things, that she had fair knowledge of the danger as a contractor enlisted to remedy the
issue. The plaintiff opposed the motion, alleging that there were questions of material reality
relating to whether the defendant had a duty to warn her of the danger posed by the system of
floor joist support. The trial court rejected the summary judgment motion. This decision was
found to be in error and overturned by the Court of Appeals.
Georgia law, as noted above, does not authorize an invitee on another's property to recover
liability for an injury incurred by a property hazard if the proof indicates that the invitee had fair
knowledge of the hazard. See Houston v. East Wal-Mart Shops, L. P., Ga. 324. App. App.
Numbers 105, 107-10 (2013). Here, the Court of Appeals ruled that there was no question that
the plaintiff had fair knowledge of the risks posed by the danger that caused her injury to the
defendant. Indeed, in many apartments in the building, the plaintiff had fixed the flooring, three
of which required new joist floor systems. In addition, the plaintiff admitted to having inspected
this particular apartment the day before and to seeing substantial damage to water, including
damage to moisture and water that sunk down to the kitchen below. The joists were rusted,
separated, and weathered, she also testified. The Court of Appeals concluded from this
testimony that it was clear that the plaintiff had equal knowledge of the risks that the rotting
floor posed.

Contributory negligence
When the plaintiff adds to the harm caused by the defendant's negligence or wrongful action by
his own lack of care, he is found guilty of contributory negligence. If the next cause of the
accident is the act or omission amounting to the lack of ordinary care or in defiance of duty or
responsibility on the part of the complaining party (the complainant) combined with the
negligence of the other party, an accident will be assumed to be the product of contributory
negligence. If an accident is attributable to the negligence of both parties, there will be a
substantial connection. In the event of contributory negligence, the key issue on which
responsibility rests would be whether any party might have prevented the outcome of the
negligence of another by taking due caution. Whichever party could have prevented the outcome
of negligence by others would be responsible for the accident. If the careless act or omission of
an individual was the near and immediate cause of death, the truth was that the person causing
disability was

Negligent in himself and therefore led to the accident or other circumstances that caused the
injury does not afford the other a defense. Contributory negligence is only applicable to a
complainant's conduct. This is a defence in which the defendant needs to show that the plaintiff
did not take good care of his own protection and that was a contributing factor to the damage
that the plaintiff actually sustained.
Comparative negligence
This defence requires claiming that the plaintiff was partially or completely liable for causing
the accident. Perhaps the threat was "open and obvious," or rather obvious, but something else
distracted the victim, so they failed to see it. Their distraction may result in a finding to a certain
extent that they were at fault for the accident. The victim's reward will then be diminished by the
proportion of faults associated with them. For instance, a hotel could neglect to properly
maintain a stairway, when a guest might be talking on their phone while walking down the
stairs. If they trip and fall on the section that was not properly maintained, some of the blame
may be shared by both parties. They could claim compensation for 70% of their losses if the
victim was 30 percent at fault.

Inadequate notice
A defendant also could respond to a premises liability claim by claiming that they lacked
adequate knowledge of the danger on the land. In essence, this implies that the plaintiff is unable
to satisfy the necessary aspect of the argument, which is an actual or positive notice. This
defense may be successful if it is unclear when the danger occurred, or if the plaintiff lacks
proof to prove how long it existed. For example, if a customer fell at a supermarket on spilled
produce, the store could claim that the product was not on the floor long enough for an
employee to have noticed it before the accident. In assessing how long a threat has existed,
photos, video evidence, and witness testimony play key roles. If, at the start of the case, the
plaintiff does not offer a sufficient ground for justifying this aspect of the lawsuit, the defendant
may be able to win a summary judgment or dismiss the case for failure to state a claim. This
suggests that a jury would not be able to get their evidence to the plaintiff.

Procedural Defences
Maybe the wrong party was identified as the defendant by the plaintiff. Prosecuting the right
defendant can be tricky, particularly when the plaintiff sues a government entity after an
accident. Different parties may be liable for the treatment of different areas of the premises and
may not be the person responsible for the area where the victim was injured by the owner of the
general property. If the plaintiff sues the incorrect defendant, they would be able to dismiss the
lawsuit and refile it against the correct defendant if the statute of limitations has not expired.
However, in cases involving the government, since the notice duration tends to be very short in
these cases, the plaintiff does not have much time to refile the lawsuit. If the plaintiff filed it
outside of the statute of limitations or a government warning period, a premises liability case can
also be dismissed. In general, these time limits are strictly interpreted by the courts. Exceptions
to restriction laws and notice provisions are typically narrow, but without consulting an attorney
about it, you can not presume that an exception applies to your case.

CONCLUSION AND SUGGESTION

To sum up, the essence of an occupier's duty varies with the types of guests. If an individual is a
legitimate visitor, then the occupier has the obligation to take good care of the visitor's
protection and his property. Legal visitors were graded into Invitee and Licensee, depending on
the visitor's intent, prior to the passage of the Occupiers' Liability Act 1957. This distinction
between an invitee and a licensee, however, has now been abolished. As this case aptly reveals,
not all cases of accountability for premises are the same. In reality, recovery depends not only
on the circumstances of the accident, but also on the identity of the person injured and the
knowledge of the property he or she may have. While many assume that cases of premises
liability are simple undertakings, the facts of any specific action will render recovery more
challenging than anticipated. The term, the presumption of danger, is quite confusing. It masks
many policy problems in application, and is constantly being used to ask the real question. If the
word is eradicated and the cases separated under the subjects of consent, neglect of duty, and
contributory negligence, precise research in the law of negligence will certainly be advanced.
The participants would be viewed more clearly and the determinations could be made more
objectively and realistically, whether by a judge or jury.

BIBLIOGRAPHY