Keep Out: Minimizing Liability for Non-Public Business Locations

For anyone operating a business or controlling a construction site, an unauthorized person entering a private area and leaving with an injury can be a big concern. In the courts, responsibility for injuries occurring on land you own or control is called “premises liability,” and the costs of treating such injuries can be hefty. Fortunately, there are steps you can take to protect yourself and members of the public.

Business operators typically have a duty to see to it that the portions of their property that are open to the public are reasonably safe. This includes no hidden traps that a reasonable visitor would fail to notice, no broken steps, missing manhole covers in the parking lot, no wires across known travel paths, and so on.

But often it is impractical to make the entire job-site visitor-friendly. Repair shops and restaurants may have sharp or super-heated equipment. Businesses in old homes or historic buildings may have old, narrow staircases. Construction sites may need to keep avenues open for deliveries of materials despite the presence of dangerous equipment. Homes under construction may have no practical method of securing the unfinished structure against unauthorized entry. In short, it’s almost always impossible to eliminate all risk.

Still, businesses aren’t helpless. They can minimize risk by clearly marking a location as closed to public access. A person who enters an area clearly marked as off-limits to the general public is typically considered a trespasser. Under Utah law, trespassers can make relatively few claims, generally related to deliberate traps. Therefore, the stronger the evidence that the person was trespassing at the time of injury, the better a business’s chances are of defeating a claim for damages.

Key to limiting this liability is clear signage. “Employees Only,” “No Trespassing,” or “Keep Out” signs should be placed at or near eye level in clear print. Ideally, they should be visible at a distance and not obscured by lighting levels, open doors, plants, décor, equipment or other obstructions. Additional precautions may be necessary in areas frequented by small children incapable of reading or comprehending written warnings, especially if the restricted space appears at all enticing to children.

Finally, just because you don’t own the land doesn’t mean you’re off the hook. Injured persons may sue contractors or other service providers who create unsafe conditions on the property.

It pays to look at the job-site from the perspective of a passerby. Fix the simple hazards and steer the public away from those that cannot be fixed or secured from public access. If you want an area to be off limits, make that clear. If engineering, fire marshal, OSHA, building code, or other governmental inspections of the business location reveal any deficiencies, be sure to address them promptly. A little attention now can avoid a long process of litigation.

Should you have questions about protecting your business or a specific case, we invite you to contact us directly.

Skoubye, Nielson, Johansen Attorneys Salt Lake City Utah

Michael D. Lichfield