Businesses and landowners have a duty to provide a safe and secure environment. When they do not and someone is injured, they can be held liable for damages, including medical bills, lost wages, and pain and suffering.
Duty Owed
As it relates to slip-and-fall injuries, liability depends on whether or not the victim was owed a “duty of care” and whether or not this duty was breached. In Colorado, the exclusive remedy against a business or landowner is pursuant to the Colorado Premises Liability Statute (“the Statute”).
The Statute divides potential claimants into three different groups:
- Trespassers
- Licensees
- Invitees
The requisite duty varies significantly depending on the victim’s status.
Trespasser
A trespasser is a person who enters or remains on the land of another without the landowner’s consent. A trespasser may recover only for damages willfully or deliberately caused by the landowner. While there is generally no duty owed to trespassers, businesses and landowners must take measures to protect children on the property, including trespassing children.
Under the attractive nuisance doctrine, businesses and landowners have a duty to maintain and protect children from artificial conditions on the property. Accordingly, liability may be established if the business or landowner knew, or had reason to know, that children were likely to trespass in the area but the children are too young to appreciate the reasonable risk of injury or death. A common example of an artificial condition is a swimming pool.
Licensee
A licensee is a person who enters or remains on the land of another for the licensee’s own convenience or to advance his own interests, pursuant to the landowner’s permission or consent. A licensee may recover only for damages caused by the landowner’s unreasonable failure to exercise reasonable care with respect to dangers created by the landowner of which the landowner actually knew or by the landowner’s unreasonable failure to warn of dangers not created by the landowner which are not ordinarily present on property of the type involved and of which the landowner actually knew.
Essentially, businesses and landowners are required to either fix known dangers or provide sufficient warning of any potential dangers. Licensees, when entering a property, assume the risk of injury from any potential dangers about which they were warned or should have been aware.
Invitee
An invitee is a person who enters or remains on the land of another to transact business in which the parties are mutually interested or who enters or remains on such land in response to the landowner’s express or implied representation that the public is requested, expected, or intended to enter or remain. An invitee can recover for injuries sustained on the property when:
- The business or landowner actually knew or should have known of the danger and
- The business or landowner unreasonably failed to exercise reasonable care to protect the invitee from danger.
The first requirement is satisfied by either actual or constructive knowledge. Actual notice is such notice as is positively proved to have been given to a party directly or personally, or such as the party is presumed to have received personally because the evidence within the party’s knowledge was sufficient to put the party upon inquiry. Constructive knowledge is knowledge that one exercising reasonable diligence should have.
Colorado courts have consistently used a liberal definition in its evaluation of what constitutes knowledge. As a matter of public policy and safety, the law imputes certain knowledge to prevent individuals from denying knowledge or acting in a way so as to remain ignorant. Thus, businesses and landowners have a duty to act reasonably in light of the foreseeability of injury occurring on the property. Within this context, foreseeability is not a mere possibility, but a probability. One indicator is whether injury-causing-situations have occurred before and whether they are likely to happen again, if reasonable precautions or preventive measures are not undertaken by the landowner.
If the business or landowner had knowledge of a danger, they are also required to exercise reasonable care to protect invitees from such conditions. Generally, the law balances the burden of precaution against the foreseeable risk of serious injury in establishing liability for negligence. If the foreseeable risk of serious injury is great, landowners are expected to be more demanding and stringent in their safety precautions. Moreover, where the risk of danger is not apparent to those making use of the property, the landowner’s burden is even greater.
While there is no precise way to measure what is reasonable care, the law defines it as what a person of ordinary intelligence and judgment would do under like or similar circumstances. For example, it may be reasonable for a store owner to conduct periodic inspections to look for spills or other potentially dangerous conditions and monitor and clean public areas on his or her property to make sure they are safe. However, the store owner cannot be expected to continuously inspect his or her property around the clock to ensure nothing is spilled or broken in public areas.