Can I protect my property from injury claims by placing a lien on it?
Typically, homeowners protect themselves from claims of injury or other liability claims by purchasing homeowner's insurance. Claims of negligence as opposed to intentional or malicious acts of the homeowner will be covered by the insurance. The insurance company usually provides legal defense also. However, it is possible that the amount of insurance will not be sufficient to pay the claims. Many homeowners buy an additional "umbrella"policy of a significant amount to insure against substantial financial claims.
Claims for injury or other damages are brought against the homeowner individually, not against the property itself. In the event the injured party is successful in a claim and money is owed, the injured party will try to collect from any assets owned by the homeowner.
Lack of equity in a property will not prevent a claim from being made against a piece of property. A lien can remain on the property until such time as a transfer of ownership is made and then the debt is paid.
Claims against an insured by those injured on the insured’s property, frequently of the slip and
fall variety, are among the most common of claims. Traditionally, courts have used status
classifications – trespasser, licensee, business invitee – to determine the duty of care owed the
entrant by the property owner.
A trespasser is someone who is on the property without permission. To a trespasser, the
property owner owes no affirmative duty of care.
A licensee is someone who is on the property with permission, express or implied, but
whose presence is for the licensee’s own benefit rather than for the benefit of the
property owner. To a licensee, the property owner owes a duty to warn of known, hidden
A business invitee is someone who is invited onto the property for some economic
benefit to the property owner. To a business invitee, the property owner owes a duty to
exercise reasonable care to make the property safe and must inspect the property to
uncover dangerous conditions and either remedy them or, at least, warn of them.
These three traditional common law classifications still determine premises liability claims in 27
states. Clearly in these states it is important to understand the categories and corresponding duties of
care that apply. The following courts still apply the traditional classifications: Alabama, Arizona,
Arkansas, Colorado, Connecticut, Delaware, Georgia, Idaho, Indiana, Iowa, Kentucky, Maryland,
Michigan, Mississippi, Missouri, New Jersey, Ohio, Oklahoma, Oregon, Pennsylvania, South
Carolina, South Dakota, Texas, Utah, Washington, Vermont, and Virginia.
The other 23 states, and the District of Columbia, have modified the rule, at least in part, so that an entrant’s status no longer automatically determines the duty of care owed by the property owner.
In these modified states, the issue is whether the property owner exercised reasonable care under the circumstances. The entrant’s status may be a factor in determining the property owner’s duty of care, but it is no longer the sole determining factor. The following 24 jurisdictions have, at least in part, modified the traditional rule: Alaska, California, District of Columbia, Florida, Hawaii, Illinois, Kansas, Louisiana, Maine, Massachusetts, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Rhode Island, Tennessee, West Virginia, Wisconsin, and Wyoming.