Virginia law governing the liability of property owners can be complicated and often depends on the circumstances of a specific case to determine whether there is liability for injuries suffered by a visitor or guest on the property. Below are some general comments on some highlights of this area of Virginia law.
- Duty Owed by Property Owner to Other Persons
Virginia law considers the nature of the visitor on the property in determining whether a property owner is liable for injuries to that visitor. There are three general classifications of visitors that are relevant for this discussion:
A “trespasser” is a person who intentionally and without consent or privilege enters another’s property. Generally, a property owner owes no duty to protect or safeguard an unknown trespasser from injury upon the premises. To a trespasser, an owner owes no duty to maintain his property in a safe condition. Likewise, there is no general duty on the part of an owner to prevent a trespass. See Norfolk & P.R.R. v Barker, 221 Va. 924 (1981).
However, once the owner is aware of the trespasser’s presence, some degree of duty arises on the part of the owner. Essentially, an owner must exercise ordinary care not to injure a known trespasser. See Franconia Assocs. v Clark, 250 Va. 444 (1995).
Some of the legal standards are different when the trespasser is a child, but generally Virginia does not adhere to the “attractive nuisance” doctrine. That doctrine provides that children are unable to control their impulses, and when a piece of property has some feature that children find interesting (pond, tower, etc.), that owner should anticipate that children may be drawn to that feature, and should take appropriate measures to protect such child trespassers. However, there are some cases in Virginia which carve out an exception to this general rule in cases where an owner maintains on his property an instrumentality of hidden or latent danger which is easily accessible to children and in a location where children are known to frequently gather. See Washabaugh v Northern Va. Constr. Co., 187 Va. 767 (1948).
A “licensee” is described as a person who enters the land of another, with permission, and for his or her own purposes and benefits. Licensees include the following classes of persons: social guests, hunters, persons who are invited into one portion of the premises and proceed to enter other portions, trespassers whose presence is known and acquiesced-to by the owner.
An owner of property owes a slightly higher duty to licensees over trespassers. For licensees, the owner owes a duty to warn of any hidden or latent conditions upon the property of which the licensee is unaware, and which pose an unreasonable danger to the licensee. See Busch v Gaglio, 207 Va. 343 (1966). As with trespassers, an owner owes no general duty to maintain his property in a safe condition.
An “invitee” is described as a person who enters the land of another, with permission, pursuant to the invitation. Unlike trespassers and licensees, a property owner owes a duty to invitees to maintain the premises in a reasonably safe condition. See Tate v Rice, 227 Va. 341 (1984). Further, the owner owes an invitee the duty to exercise ordinary care to discover dangerous conditions and to prevent foreseeable injury to the invitee. See roll ‘R’ Way Rinks v Smith, 218 Va. 321 (1977). Further, the owner can be held liable if he has actual or constructive knowledge of the defect. See Culpepper v Neff, 204 Va. 800 (1964).
In the event that an invitee sustains injury, the injured invitee must show negligence on the part of the property owner, that such negligence proximately caused a foreseeable injury to the invitee, and that the hazard or defect was not “open and obvious”. It has been held that the failure of an invitee to observe and avoid a danger that was “open and obvious” constitutes contributory negligence on his or her part, thereby precluding any recovery from the owner. See Snyder v Ginn, 202 Va. 8 (1960). This often causes injured persons difficulty in making out their case, as they have to show that the defect was easily-enough discoverable by the owner to show that the owner was negligent for not fixing it or warning the plaintiff, but that the defect was not so easily identifiable by the plaintiff so as to constitute an “open and obvious” hazard.
- Snow and Ice
An owner of property is not required to remove snow and ice from his or her property until a reasonable time after the snow or ice ceases. See Mary Washington Hosp. v Gibson, 228 Va. 95 (1984).
- Intervening Criminal Acts of a Third Party
Generally, a property owner owes no duty to prevent the criminal acts of third persons on the owner’s property. However, exceptions to this general rule include: where the owner has some special relationship to the third person sufficient to impost a duty on the owner to control the acts of the third person; where there is some relationship between the plaintiff and the owner sufficient to impose some duty on the part of the owner to protect and safeguard the plaintiff. See Burdette v Marks, 244 Va. 309 (1992).