If a Tree Falls in the Woods are we Responsible?
A Review of Premises Liability
By: Daniel Washburn – North Carolina Licenced Attorney with Brownlee Whitlow & Praet, LLC
Premises Liability can be just as confusing as it is overwhelming. Fortunately, it doesn’t have to be either! On August 2, 2022, the North Carolina Court of Appeals handed down a decision in Asher v. Huneycutt (“Asher”), further clarifying Premises Liability. This decision is a great opportunity to review Premises Liability and how it affects residential rental housing.
I. What is Premises Liability?
Premises liability is typically based on negligence when an injury was caused due to an unsafe or defective condition on a property. In other words, you may be liable to a resident if you failed to do something that you should have done or did something to cause the injury, and because of this the resident suffered an injury. While this may seem broad, this duty only extends to harms where there was a duty or obligation for you to mitigate the risk of that harm that we will discuss in greater detail below.
II. Background of the Case
In the Asher case, Robert Asher sued a homeowner after he fell down a set of steps based on Premises Liability. In May of 2016, Robert Asher, and his wife were visiting the property for a graduation party. While leaving, Mr. Asher fell, and was injured, as he attempted to help his wife down a set of steps in the garage. Mr. Asher’s suit was based on two forms of negligence, both of which apply to Premises Liability. First, he sued the homeowner for Negligence Per Se, which is defined as when a party is deemed negligent because they fail to follow a law or ordinance. Secondly, Mr. Asher sued the homeowner for common law negligence, which alleged the homeowner did not take care of the steps in a way a reasonable person would have. Let’s look at both claims
A. Negligence Per Se
The Court defined Negligence Per Se as a duty that is created by statute or ordinance. Mr. Asher argued that the homeowner was negligent because an investigation found that the garage steps did not meet building code standards
The Court held that a property owner cannot be found to be negligent per se for a violation of the code unless “1) the owner knew or should have known of the violation, 2) the owner failed to take reasonable steps to remedy the violation, and 3) the violation proximately caused injury or damage.” The Court found that the code violations were minimal, the homeowner did not know the steps were out of compliance with the building code because he had the home inspected by a professional inspector, and the inspector did not find anything wrong with the steps besides a loose handle which was immediately fixed. It is difficult to determine whether a similar analysis would have been applied to a multifamily community. It is likely that a professional or corporate housing provider would be held to a higher standard than that of a residential homeowner, and the result may have been different for a multifamily community
B. Common Law Negligence
The Court next analyzed the Common Law Negligence claim in which Mr. Asher argued that the homeowner had a duty to inspect and repair the steps. The Court stated that Common Law Negligence requires 1) that the property owner fail to exercise reasonable care in performing a duty owed to the injured party (maintaining the property in a “safe” condition), 2) the failure to exercise reasonable care was the cause of the injury, and 3) the property owner should have foreseen the injury was probable under the circumstances
Again, the Court found that the homeowner in Asher was not negligent, because they acted as a reasonable person would act under the circumstances. The homeowner had the home inspected by a professional and the homeowner conducted regular inspections of the property himself. While the Court ruled in the homeowner’s favor as to both claims, it did state that a property owner has a duty to make reasonable inspections to learn of the existence of hidden dangers
III. Application
Premises liability claims often arise when someone, or someone’s property (such as a car) has been injured in a community. This could be due to water intrusion, flooding, a tree falling, organic growth (i.e. mold) conditions in a premises, someone falling from a balcony due to a faulty or loose railing, etc. In any of these cases the first question is whether the property owner/manager was aware, or should have been aware, that the damage was likely to occur. Had the property owner/manager received complaints about similar issues in the past or should they through reasonable inspection have realized that the source of the damage was likely to occur. If the answer to this question is “no”, then they should not be found liable.
IV. Takeaways
To best protect your community, it is imperative to fix issues that you are aware of and to conduct regular inspections. Further, if an expert or professional can perform those inspections, you may be further protected as seen in Asher. Nothing can make you immune from all lawsuits, but following the guidance from the Court in Asher should put you in a much better position to avoid liability should a claim arise.
*The information provided in this article does not, and is not intended to, constitute legal advice; instead, all information in this article is for general informational purposes only. Information in this article may not constitute the most up-to-date legal or other information. Viewers of this material should contact their attorney to obtain advice with respect to any particular legal matter. No viewer of this material should act or refrain from acting on the basis of information in this presentation without first seeking legal advice from counsel in the relevant jurisdiction. Only your individual attorney can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation. Use of, and access to, this article does not create an attorney-client relationship between the reader and Brownlee Whitlow & Praet, PLLC or any contributing law firms. All liability with respect to actions taken or not taken based on the contents of this article are hereby expressly disclaimed.
