Author: Kathleen M. Smith, Fredericksburg, VA Personal Injury Attorney
I’ve Fallen and I Can’t Get Up!
As a personal injury attorney, I speak with injured people nearly every day. Although injuries from motor vehicle accidents are the most common in my form of practice, I see people who have been injured in all types of circumstances and scenarios – while shopping, eating in restaurants, socializing with friends, visiting amusement parks, and so on.
What is a premises liability claim?
Under Virginia law, an incident that occurs on another person’s property is called a premises liability claim. The law that applies to these cases can be complicated and complex. Accordingly, this article is designed to address the main points of consideration for determining liability in Virginia premises liability cases.
In the broadest possible sense, all personal injury claims in Virginia start out very simply. The property owner, or defendant, must have breached a legal duty that they had to the injured person, or plaintiff, and the breach must have caused the harm and injury that the plaintiff claims.
In the premises liability context, while Virginia law makes clear that owners and/or occupants of a premises may be held liable for injuries caused to other people by conditions on that premises. Establishing the duty a property owner or occupant owes to an injured person can require a somewhat complicated analysis.
If you’re injured on someone else’s property
Under the Code of Virginia, plaintiffs injured on the property of another are broken down into three categories: trespassers, licensees and invitees. The duty owed to the injured party varies depending on which of these three categories applies to the injured party.
A trespasser is defined as “one who unlawfully enters the land of another.”  Generally speaking, a property owner has no duty to keep the premises in a safe condition for trespassers. This proposition makes sense. If you own a piece of property, the law does not require you to maintain your property to ensure the safety of people who do not have permission to be on your property in the first place.
A licensee is defined as a person “who enters property for his own convenience or benefit with the knowledge and consent, express or implied, of the owner.”  Licensees include social guests, hunters, travelers at railroad crossings, and a wide range of other instances. As a general rule, the owner only has a duty to warn the licensee of dangerous conditions of which the owner has knowledge or notice. Absent such knowledge or notice, there is no duty to warn and thus no liability. 
An invitee is an individual to whom the landowner or occupier has extended an invitation and the visitor enters pursuant to that invitation. A visitor is considered an invitee if the premises is open to the public and the visitor enters for the purpose for which the premises are open. The owner or occupant of the premises owes a duty to invitees to use ordinary care to maintain the premises in a reasonable, safe condition and to warn invitees of hidden dangers.  For example, if a shopper enters a grocery store to purchase food, they are an invitee. The owner has both a duty to maintain the property in a safe condition and a duty to warn the shopper of any hazards like a freshly mopped, still wet surface or a loose tile on the floor. If, during the course of their shopping, the plaintiff wanders into the ‘employees only’ stock room, they could then be considered a trespasser to which no legal duty is owed.
As you can see, it is important who the plaintiff is, why the plaintiff is on the premises, and where the plaintiff is at the time they are injured. This evidence is vitally important in determining whether the premises owner or occupant owes a legal duty to the plaintiff.
Steps in a premises liability case
In Virginia premises liability cases, assuming that you can establish a legal duty, the plaintiff must also show that the defendant had actual or constructive notice of the defective condition before they can establish that the duty was breached.  Actual knowledge is straightforward. Either the owner or occupant knew about the hazard or they did not. If the defendant claims they did not know about the defect, constructive knowledge can be established by showing that the defect existed for a sufficient period of time that a reasonable owner or occupant should have known about it. 
The example I give to clients to illustrate this concept is of a young child who drops a banana peel on the floor of a supermarket. If no one tells an employee about the banana peel, and the peel is only on the floor for a matter of seconds before the next shopper slips on it, the store had neither actual nor constructive notice of the defective condition, could not possibly have remedied the problem, and therefore, will not be liable for any resulting injury. If the potential plaintiff is unable to establish actual notice of the defect or hazardous condition, they must be able to show when the defect came into existence in order to prevail in their claim, and demonstrate that the defect existed long enough that it was unreasonable for the defendant to ignore it. 
If you or someone you know is injured on the property of another, the skilled and experienced attorneys of Allen & Allen are happy to walk through the analysis above as it pertains to the unique facts and circumstances of your case. Navigating the complicated world of premises liability claims in Virginia unassisted can have disastrous consequences. Contact us for a free consultation at 1-866-388-1307.