• Slip and Falls on Your Property - When Are You Responsible
  • February 27, 2018
  • If you own a house, a business or a piece of property, you have probably worried about whether or not you can be held responsible for “slip and fall” injuries. The following is a brief explanation of the general rules of premises liability.

    The law in Montana used to separate people coming onto your property into categories (those you invite, those who have permission to enter onto your land, trespassers, etc.). Many states still use these categories to determine what, if any, duty a landowner owes a person on his or her property. The states that still separate people based on their status use that status to determine the nature and extent of the landowner’s responsibility to them. This responsibility is called the landowner or possessor’s “duty of care” and it depends on what the property is used for (business or private) and the status of the person who gets injured.

    For example, for states that still use the categories described above, the owner or possessor of a building or piece of land generally does not owe any duty to make the premises safe for a trespasser. In other words, the duty of care owed to trespassers is the lowest under the law for states that still use the entrant categories. Similarly, an owner’s duty of care is significantly higher to people he or she invites onto his or her property, called “invitees.” For invitees, these states usually impose a duty to use reasonable care to keep the property free from hidden dangers (for example, a landowner may be held liable for injuries to an invitee caused by a missing rung on a ladder used to access a dark basement). At the same time, a property owner is generally not responsible for injuries caused by an open, obvious or known danger on his or her property (like a snow berm that is obvious or that an invitee has crossed once but is injured when trying to cross a second time).

    Montana is different, however. We have abolished the use of entrant categories to determine a landowner’s duty of care. In place of that nuanced system still used in many states, Montana has adopted a uniform duty of reasonable care, regardless of the status of the person on the property. The rule in Montana is that if you own or possess a building or piece of property, you owe everyone (even trespassers) the same duty to use reasonable care in the maintenance of your building or land. This duty requires owners or possessors of property to warn of any

    1. hidden or lurking dangers, and
    2. open and obvious dangers that, despite being open or obvious, the owner should anticipate will cause harm to those on the property.

    Richardson v. Corvallis Pub. Sch. Dist. No. 1, 286 Mont. 309, 321, 950 P.2d 748, 755-756 (1997).

    The Court has stated this duty in another way:

    In other words, the possessor of the premises may no longer avoid liability simply because a dangerous activity or condition on the land is open and obvious; this includes avoiding liability for open and obvious natural accumulations of ice and snow. Rather, the possessor of the premises may only be absolved from liability for injuries resulting from open and obvious dangers if he should not have anticipated harm to occur.

    Richardson v. Corvallis Pub. Sch. Dist. No. 1, 286 Mont. 309, 321, 950 P.2d 748, 756 (1997). But, the Court has said, “[t]his does not mean that the possessor of the premises is an absolute insurer of the safety of the premises. […] Instead, whether the possessor of the premises should have anticipated harm depends on “the degree of ordinary care which reasonable persons would use under the same or similar circumstances.”

    So what does that mean for someone who owns a house or business in Montana? First, it doesn’t matter whether someone on your land is a trespasser or customer. The duty to use reasonable care extends to anyone and everyone who foreseeably comes into your building or onto your land. Second, it doesn’t matter how snow or ice got onto your property, a concern that used to matter in Montana. Third, you must either repair or warn any hidden or lurking dangers, as well as any open and obvious dangers if you have reason to know they might cause harm. Whether or not you should anticipate harm from an open or obvious danger depends a lot on what use the building is put to, as well as whether or not you have any notice of the condition causing injury or harm in the past.

    For business owners, take quick action whenever you receive notice of a problem with your property. If you have received a complaint about an issue on your property but fail to do anything about it, you are probably going to be responsible for injuries it causes in the future. For members of the public, watch where you are going and take extra care during the winter months.