On Guard Against Open Windows, Gopher Holes,
and Other Lawsuits Waiting To Happen
by Stephen D. Pahl and Karen K. McCay
Suppose that you own and manage residential rental property. Suppose that during a visit to the property, you notice that a handrail is loose. At the time, you do not have the proper tools to fix it, but plan to return within a few days to do so. You leave the property without placing a sign warning residents and others of the loose handrail. Before you can fix it, someone falls as a result of the loose handrail and breaks his or her neck.
Are you liable? Yes, you are.
This scenario is becoming more and more common throughout the country. In today's legal society, both property owners and managers face broader exposure to liability than ever before and must be aware of the dangers associated with this legal pitfall.
The best way to understand and avoid liability is by providing examples that have exposed rental property owners to potential liability.
Screening out potential problems
One example involved a minor who fell from a second-story window in a residential apartment complex. The minor broke both of his legs and arms because of the fall. The window was located in the common area and was always open. A court ruled that the owner was liable for the minor's injuries for not taking steps to maintain the window and prevent the minor from falling. The liability could have been avoided. The owner should have taken action to guard against this type of accident, such as placing a screen in front of the window and/or preventing the window from opening up more than a limited distance.
Another example deals with injuries caused by an electrical outlet fire. A resident requested that the owner repair a defective electrical socket. In the meantime, the renter used an extension cord to connect his refrigerator to another electrical socket. The owner knew about the extension cord and promised to repair the defective socket, but never did so. As a result of the extension cord, a fire ignited and resulted in severe burns to the renter and damage to his personal property.
The owner was held liable for the injuries because the owner knew of the dangerous condition and failed to repair the electrical outlet in a prompt manner. To avoid liability in this example, the owner should have made the repairs as soon as informed the situation — which could have meant simply dashing over to the local hardware store and purchasing the proper tools. By waiting, the owner was exposed to liability.
Must you warn visitors...it depends
It is also important for a property owner to know the status of his or her guest and the corresponding legal obligation imposed on the owner. Take the case of a social guest who was attending a party at the rental community. The guest was injured when a bookcase fell, crushing the victim's head.
The owner was not found liable for the guest's injuries because the owner had no knowledge that the bookcase was on the verge of falling. The owner only needed to warn the guest of the dangerous conditions that he actually knew existed on the property. Since the owner did not know the dangers associated with the bookcase, there was no liability.
In situations involving guests, the owner does not need to inspect the property for unknown dangerous conditions, such as a potentially dangerous bookcase. The landowner is held liable only for known dangerous conditions.
When a guest is on the property for a business purpose, however, landowners need to inspect the property for unknown dangerous conditions as well as warn guests of any known dangerous conditions.
Here's the case of a door-to-door salesman who came to the owner's home to sell encyclopedias. While in the landowner's home, the salesman used the bathroom and cut his hand on a cracked bathroom sink. The owner was held liable for the salesman's injuries because the salesman was on the property for a business purpose. Thus, the owner was required to inspect the bathroom and warn the salesman of the hazard posed by bathroom sink.
When to warn trespassers
Generally, a property owner owes no duty to warn trespassers about possible dangerous conditions on the property. But, in some cases, a trespasser can also sue and hold an owner liable for injuries suffered on the property. That happened to a neighbor who routinely walked across the owner's property en route home — a shortcut the owner knew about.
While walking his property one day, the owner noticed a gopher hole along the neighbor's path. Rather than warn the neighbor, the owner did nothing. Subsequently the neighbor stepped in the gopher hole, fell and broke his ankle. The owner was held liable because he knew that the neighbor was trespassing and did not warn him of the dangerous condition posed by the gopher hole.
An antidote for lawsuits
So, if an owner knows that someone is trespassing, the owner must warn of any known danger to avoid liability.
The common thread in the above examples is a property owner's knowledge of the dangerous condition. The best remedy to avoid liability is to remember the following:
If you notice — or you are notified — of a dangerous condition or potential dangerous conditions on your land, you should take immediate steps to ensure the safety of your renters and any other guests or visitors.
Know the status of your guest and whether you must warn of known dangerous conditions and/or inspect the property for any dangerous conditions. If you do not remember these warnings, you could find yourself in unnecessary litigation.