Safe at Home: An Owner’s Guide to Law, Liability

What if you wax the floor to impress your dinner guest, but she skids across it, falls and breaks her hip?

What if the excavation for the dream house you’re building causes your neighbor’s basement wall to cave in?

What if your new pet Doberman takes a chunk out of the mailman’s backside?

In any of these cases, you could be liable for thousands of dollars in damages. Any time someone gets hurt on your property because of your negligence (carelessness), you may be legally responsible. The same applies when you or your children carelessly or intentionally do things that cause damage to someone else’s property.

A typical case involves someone slipping and falling, say on a slippery walkway. Other common injuries involve power lawn mowers, swimming pools, boats, jet skis and recreational vehicles. Homeowners are liable only if a court finds them in some way negligent--though many settle before this point if they or their insurer believes that a court would find them negligent.

An Ounce of Prevention

Thirty years ago, the injured party probably wouldn’t have sought damages, because, after all, accidents happen. At the most, the homeowner might have been asked to reimburse the injured party’s medical bills. But times have changed, and many people now feel they’re entitled to full compensation when they are injured--even by friends.

It is important to note that 99% of such cases don’t go to trial. Sometimes a suit is threatened but never filed, or is dropped before trial. In many other instances, the parties agree to an out-of-court settlement.

Most homeowners are smart enough to carry insurance, and the insurance company generally handles any claims against the homeowner. It’s only when the insurer believes the claim is unreasonable that the matter is likely to land in court. Even then, the insurer will furnish the attorney and pay any damages awarded (up to the limit of the policy), along with court costs.

Still, facing a lawsuit and going to court is no fun. Lawsuits involve months of depositions, motions and counter-motions before the trial even gets started. Even after a verdict is rendered, a party may appeal and the battle can continue for years.

As a homeowner, you’re far better off both preventing injuries in the first place and protecting yourself with a solid insurance policy in the event the unavoidable and unexpected does occur. If you don’t, your finances--and your peace of mind--may well be at risk.

Law of Negligence and Liability

Historically the law identified four categories of people who might be injured on your property--invitees (such as a mail carrier), social guests (a dinner guest), licensees (someone who stops to ask directions), and trespassers (such as a burglar)--and the homeowner’s duty of care depended on the category the injured party fell into.

Today, these distinctions have all but disappeared, though in a few jurisdictions the trespasser is still in a separate legal category from “lawful” visitors. The courts in most states now hold property owners to the same standard with respect to everyone: a duty to employ reasonable care in maintaining your property and to warn people of hazards.

So, for example, if you’ve given someone permission to pick berries on your property, you’d better warn the berry picker that the local gun club is holding target practice nearby.

Generally, courts hold homeowners responsible only if they are in some way negligent. The law doesn’t expect a homeowner to guarantee that a visitor will not get hurt. People do trip over their own feet and lightning does strike. But it’s your responsibility to take reasonable care to protect people from hazards that you know about. The lack of such care is called negligence.

In what circumstances might you be held liable? The following should raise red flags for you:

--If you fail to maintain your property or create a condition that may result in injury or damage to someone else’s property.

--If you know about a hazard and expect people to come onto your property, but do not eliminate the hazard, erect barriers or warn people.

--If you are not careful about hazards that might attract children.

--If your actions (or inaction) may cause damage to your neighbors’ property.

Natural vs. Artificial Hazards

Generally courts don’t hold homeowners liable for injuries stemming from natural hazards such as lakes and streams, even if the one hurt is a child, unless negligence is involved. A homeowner is more likely to be held responsible if the hazard was created artificially.

For instance, a man was pushing a child on a tree swing while attending a back-yard barbecue in New York. He stepped back onto a rotted plywood board covering a sewer trap, which gave way under his weight. A court found the homeowners liable because they knew about the danger but made it even worse by hanging the swing where anyone pushing a child on it would have inevitably stepped on the rotted cover.

The law does not expect you to anticipate every harm that might occur when people are on your property. It does expect you to exercise due care in minimizing hazards, inform your visitors of potential hazards and use common sense in maintaining your property.

Children and Attractive Nuisances

The law concerning a property owner’s responsibility for children, even when they are trespassing, has changed over the years. Back in 1901, a 5-year-old drowned after falling into an uncovered excavation that had filled with water. The court ruled that because the child was a trespasser and the property owners didn’t know there were children around the pit, they weren’t liable.

Even then, however, another legal doctrine--called “attractive nuisance”--was evolving. Some dangerous places look like such fun that landowners should expect children to come play, the courts were ruling.

Even though an uninvited child wandering into your yard to inspect the swimming pool might well be a trespasser, the law says you have a special duty to erect barriers to keep children out of harm’s way.

That’s why the Supreme Court of Georgia recently refused to dismiss a case against the owners of a swimming pool where a 2-year-old drowned. The pool was in the side yard of their home on a corner lot, three blocks from an elementary school. The yard and swimming pool were unfenced, and the pool had both a diving board and playground-type slide for easy access to the water.

Many states have specific statutes requiring protective measures around a swimming pool. Failure to adhere to these safety standards would probably make you liable in case of an accident. Check with your local building officials to determine the laws in your area.

For homeowners, the courts’ message is clear: If there’s a way in, the child finds it and he or she gets injured, you may be liable. That’s why precautions such as fences, locked gates and swimming pool covers--and good liability insurance--are so important.

Recreational Use

What if you own a lot of land and allow someone to use it for hunting, fishing, cross-country skiing or any other recreational activity? Are you liable if the person gets hurt?

Probably not. In the 1970s, virtually all states enacted recreational use statutes, designed to encourage people to open their land for recreational use without fear of liability. The statues don’t protect you if you charge a fee, or if you’re malicious in your failure to warn of hazards--such as not telling snowmobilers there’s a cable strung at neck height across their path.

For more information about such statues in your state contact a lawyer, or the department that issues hunting and fishing licenses.

Social Host Liability

So you like to throw parties? What’s your potential liability if things get out of hand and one guest picks a fight with another? Some courts have ruled that you (the host) aren’t responsible for the conduct of your guests, unless your parties routinely turn into brawls.

Where you might be liable is if you let your guest drink too much, then put him into his car and send him out on the highway. That’s what happened in a landmark New Jersey case, where the homeowners had been drinking Scotch for a couple of hours with one of the husband’s subcontractors. They walked him to his car, saw him off and called shortly to see if he’d made it home. He hadn’t. Thoroughly drunk, he’d been in a head-on collision in which a woman was seriously injured. The case went to the state Supreme Court, which held that hosts liable.

That’s a lesson worth learning. In fact, insurance companies are now offering host liquor liability policies.

Animal Attacks

Suppose your poodle attacks the delivery truck driver. Are you liable? Probably. The law holds people responsible for the actions of their pets. Most states have so-called “dog-bite statutes,” holding owners legally liable for injuries inflicted by their animals.

Most dog-bite statutes eliminate the old “one-bite” rule, which essentially gave every dog one “free” bite because until then the owner had no reason to believe it was dangerous. However, you as the owner may still defend yourself by arguing that the person injured was trespassing, breaking the law, unreasonably careless, knowingly took the risk or provoked your dog to attack.

If you own a dog or another animal that might injure someone, find out what the laws are in your area by calling your local animal control office. Know your pet’s temperament and be careful to keep it out of the path of strangers. Keep vaccinations current, and post warning signs if you think your pet might injure someone. These should be prominent and straightforward signs (Beware of Dog)--so people are clearly informed of the danger involved. (However, the signs may not absolve you from liability if a child climbs into your yard or the dog gets out.)

Next week: What to do if someone is injured on your property; liability insurance, and damage to a neighbor’s property and other areas of concern.

Adapted from the book “The American Bar Association’s Guide to Home Ownership.” Copyright 1995 by the American Bar Assn. Reprinted by permission of Times Books, a division of Random House Inc.