Understanding Duty of Care for Commercial Property Owners

​​One of the biggest risks commercial property owners face is that someone may be harmed on their property. In that event, the injured person may file a premises liability lawsuit seeking financial compensation. The main legal issues, in that case, would involve the property owner’s duty of care and whether they breached it. If they owed a duty of care and breached it, the commercial property owner would be liable.

In general, the duty of care refers to the legal obligation of an individual or business to exercise reasonable care. You assume certain duties just by virtue of being a property owner. You must keep your premises reasonably safe when someone else has a legal right to be on your property. This includes customers, renters, and anyone who has the right to pass through your property.

If you are found to have breached the duty of care in a manner that caused someone else’s injury, you could be found negligent. That is what triggers your obligation to pay the injured claimant. Any negligence case will be a facts-and-circumstances analysis that depends on the evidence the plaintiff gathers.

You Must Use Reasonable (But Not Extraordinary) Care

Note that the duty is for you to use a reasonable amount of care. What is reasonable is determined in comparison with what an average commercial property owner would do. Your role is not to be an absolute guarantor of everyone’s safety on your property. There are times when accidents really do happen, and you are not automatically liable for them. You are not expected to be absolutely perfect, nor are you expected to prevent every single mishap.

However, your actions would be compared to what a reasonable person would do under similar circumstances. That reasonable person would likely be another commercial property owner. You are being judged by the standards they would uphold. Therefore, you need to be aware of safety and inspection measures in your particular industry. If your commercial real estate is a shopping mall, then your actions would be compared to those of the average mall owner.

Your actions would be analyzed in the context of what transpired. If someone just tripped and was injured with no other factors present, you may not have violated the duty of care. The accident victim would have the burden of proof to show that you either did or did not do something that caused the accident. For example, they could argue you ignored a dangerous condition on the property for an unreasonable amount of time and did not fix it or alert the public to the problem.

Act Ahead of Time to Protect Against Liability

As a commercial property owner, your first step towards meeting your duty of care is to be proactive in both inspection and maintenance. You should have written inspection and maintenance guidelines that meet or exceed industry standards. Then, you should ensure your employees closely follow the guidelines. One of the first things a plaintiff may ask for in the discovery phase of a lawsuit is your maintenance and risk management procedures. Then, they will request documentation regarding whether you followed those procedures.

Your policies and procedures should be geared towards your own specific property. They should cover specific areas and functions. Policies should be extensive, but not overly intricate so they are clear. Documentation will be a key component of preventing liability exposure. You must show that you took reasonable steps to keep the property safe.

SOME OF THE AREAS TO PAY PARTICULARLY CLOSE ATTENTION TO IN INSPECTIONS AND MAINTENANCE INCLUDE:

  • Parking lot
  • Interior areas, such as floors and walkways
  • Stairs
  • Restrooms
  • Exterior areas in front of and behind your property

As a property owner, you must exercise care beyond just the physical maintenance of the property. You have additional obligations to ensure others’ well-being. For example, depending on the known safety hazards in the area and/or on the property, you may need to take steps to boost security. If you have escalators or elevators, you must exercise reasonable care to ensure they are safe and in proper working order.

Commercial Owners May Not Be Liable When They Rent the Property

A commercial property owner may not have a duty of care when they are not in control of their property. When the owner leases the property, the lessee may assume the duty of care to maintain the premises in reasonable condition. In addition, the owner would not be liable for any injuries suffered on the property.

A lease should clearly state that the renter is responsible in premises liability cases, and it should require that the lessor indemnify the owner in any lawsuits and pay the costs to defend these lawsuits. Before you sign a document that leases your property, you should have an attorney ensure it extensively protects you from liability.

If someone has been injured on a commercial property, their attorney will likely seek a copy of the lease to determine who should be legally responsible for the damages. The lease would dictate who was responsible for key maintenance functions on the property. You should not be surprised if the plaintiff’s attorney tries to file a claim against both the owner and the lessee since they will want to tap into more than one insurance policy.

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