Have you been injured on the property of another person? Have you had a slip and fall on someone elses property? Have you been injured while operating an all terrain vehicle on someone elses property? Have you been bitten by a dog on someone elses property? Injuries on someone elses property can come from a variety of causes. Under Indiana law, the duty that a landowner owes to a person on his or her property is determined by that person’s status on the land. Before you begin to assign liability to the property owner, you must determine whether you were an “invitee,” a “licensee,” or a “trespasser” at the time of your injury.
What is an Invitee?
An “invitee” is a person who has entered a property at the express or implied invitation of the owner. Burrell v. Meads, 569 N.E.2d 637, 640 (Ind. 1991). However, an invitation does not have to come from the landowner and it does not need to be expressly given. Yates v. Johnson County Board of Commissioners, 888N.E.2d 842, 850 (Ind. Ct. App. 2008) (quoting: Kopczynski v. Barger, 887 N.E.2d 928, at 931 (Ind. 2008)). Instead, an implied invitation is sufficient, and can be inferred from a landowner’s acts or conduct. Id. at 849. The term “invitees” include social guests, business invitees, and public invitees.
What Duty does a Landowner Owe to an Invitee?
A property owner owes an invitee the duty to exercise reasonable care for his/her safety while he/she is on the property. That duty is the same whether the invitee is a social guest, a business invitee, or a public invitee.
A landowner is subject to liability for an injury suffered by an invitee due to a condition on the land if the owner: (1) knew or by the exercises of reasonable care would have discovered the condition and should have realized that it involved an unreasonable risk of harm to the invitee; (2) should have expected that the invitee would not discover or realize the danger, or would fail to protect himself against it; and (3) failed to exercise reasonable care to protect the invitee against the danger. Burrell, 569 N.E.2d at 639-640.
Can the Landowner Claim I Assumed the Risk?
Incurred risk is defined as follows:
It involves a mental state of venturousness on the part of the actor, and demands a subjective analysis into the actor’s actual knowledge and voluntary acceptance of the risk. By definition … the very essence of incurred risk is the conscious deliberate and intentional embarkation upon the course of conduct with knowledge of the circumstances. It requires much more than the general awareness of potential for mishap. Incurred risk contemplates acceptance of a specific risk of which the plaintiff has actual knowledge. Town of Highland v. Zerkel, 659 N.E.2d 1113 (Ind. Ct. App. 1995)
What if I Signed a Waiver or a Release of Liability?
The Indiana Court of Appeals has held that a written contract may release a landowner from liability for damages caused by the landowner’s own negligence. The State Group Industrial Limited v. Murphy & Associates Industrial Services, Inc., 878 N.E.2d 475, 480 (Ind. Ct. App. 2007). However, in order to be enforced, the release must clearly and unequivocally manifest a commitment by the invitee, knowingly and willingly made to pay for damages occasioned by the landowner’s negligence. Id. Therefore, exculpatory clauses seeking to indemnify a landowner against its own negligence must specifically and explicitly refer to the negligence of the landowner seeking to be released from liability. As a result, Indiana courts have refused to release landowners from liability based on exculpatory provisions that are phrased in general terms. Powell v. American Health Fitness Center of Fort Wayne, Inc., 694 N.E.2d 757, 761-762 (Ind. Ct. App. 1998).
If you were injured on someone else’s property it is always best to speak with an attorney who has knowledge of premise liability actions. Depending on whether you had invitee or licensee status while on the premises, you may be entitled to compensation for your injuries from either the property owner or the property owner’s insurance policy. For more information about this topic, or to schedule a free consultation, please contact the law office of Tate & Bowen LLP to schedule a free consultation.