by Wilton H. Strickland

Premises liability is an area of law that has fascinated me for several years, and I recommend that landowners become familiar with it as well. Indeed, I caution against owning land in your own name at all and recommend titling land in a corporation, limited liability company, or similar entity to minimize your personal damages exposure. This is because the doctrine of premises liability can hold you responsible for accidents and injuries occurring on your land in a broad variety of circumstances, so I will sketch out some of those circumstances for your benefit.  Please note this is only a general summary; as with all of my articles, you should contact me or another attorney licensed in your jurisdiction if you seek advice for a specific legal question.

Under Florida law, your duties as a landowner hinge almost entirely on whether you invited the plaintiff onto your land. If you invite particular friends or acquaintances, or if you operate a business that attracts the general public onto your land to conduct such business, your duties are very high. More specifically, you must remove or warn of dangers that you know of or reasonably should discover, provided that the dangers are not obvious or reasonably discoverable to your guests. For example, there is no duty to protect against the obvious danger of falling down a staircase, but there is a duty if the staircase has a loose step. There is also a duty to protect your guests against crimes committed by third persons, if you can reasonably anticipate the crime by knowing the dangerous nature of the third person or of your area. This often catches landowners by surprise because, obviously, the person most responsible for the crime is the criminal; notwithstanding, the law has evolved to entitle a plaintiff to sue you if you did not take reasonable measures to protect against foreseeable crimes on your land.

In circumstances where the plaintiff arrives without invitation, however, your duties under Florida law drop significantly. If the plaintiff enters your land for personal reasons unrelated to your business, or if the plaintiff is an outright trespasser, your only duty is to refrain from inflicting willful or “wanton” harm. For example, you cannot attack a trespasser or knowingly allow concealed dangers or traps that will inflict personal injury, but there is no duty to protect a trespasser against crimes committed by third persons.

Montana law is, unsurprisingly, very different. First and foremost, the status of the plaintiff is completely irrelevant. Anyone entering your land — whether invited or trespassing — can demand that you exercise reasonable care to protect him or her from injury. In other words, Montana applies the law of negligence to landowners under all circumstances and will hold you liable if you did not take steps to protect anyone on your land from dangers that are known or reasonably knowable (this includes the danger of third-party crimes). Second, landowners have a duty under Montana law to guard against even obvious dangers. A plaintiff thus may sue a Montana landowner even if the plaintiff’s injury was caused by an obvious feature of the land, a clear distinction from Florida’s legal philosophy, and one that allows premises liability to arise in almost any context imaginable. Granted, you can defend against such a lawsuit by arguing that the plaintiff also was negligent by failing to notice and avoid the obvious danger, but you will remain liable for some or all of the damages unless it is found that the plaintiff’s negligence was greater than your own.

Once again, I have painted in broad strokes to alert you to some legal risks of owning land in Florida and Montana. You can reduce these risks by titling your land in a corporation or other legal entity, and by all means, you can contact me if you have a specific question.