Q: Is a property owner liable if someone is injured on a vacant lot?
A: The answer in New Hampshire depends more on control than ownership of the property.
To illustrate, consider this hypothetical: you own a home in New Hampshire adjacent to a vacant lot that is not regularly maintained. Although you do not own the lot, you mow the grass and trim the edges to improve its appearance and reduce its negative impact on your property. One day, a jogger cuts across the vacant lot, trips, and gets injured. Could you be liable for their injuries?
In New Hampshire, the answer will likely depend on the degree of control you exercise on the property, not ownership alone.
In Paine v. Hampton Beach & C. Co., the New Hampshire Supreme Court found that liability “depends upon control, or the right to control, of the premises where the hazard exists.” Under Rallis v. Demoulas Super Markets, Inc., owners and occupiers of land owe a duty of “reasonable care under all the circumstances in the maintenance and operation of [a] property,” which includes addressing known hazards or hazards the person in possession and control of the land should have been aware of. Therefore, if something hazardous exists on the vacant lot you voluntarily maintain, and such maintenance is found to rise to the level of controlling the property, you may be liable to the jogger if you “knew or should have known” about the danger and failed to fix or warn about it.
Additionally, New Hampshire law provides that a person who has voluntarily undertaken a duty owed by another can be liable for damages to a third party for physical harm caused by the volunteer’s failure to exercise reasonable care. Thus, if a court finds that in maintaining the vacant lot you have voluntarily undertaken the duty to maintain it, you may be liable to third parties for failing to exercise reasonable care in such maintenance. Again, the determination likely depends on the degree of control that person has over the “instrumentality” that caused the harm. The case of VandeMark v. McDonald’s Corp. is illustrative of this concept. In that case, a McDonald’s employee who was assaulted at work sued the McDonald’s franchisor arguing that it assumed a duty to ensure safety at the franchisee’s storefront through its adoption of security policies. The court ultimately concluded that the franchisor did not assume such duty because the security policies were required for franchisor owned locations and franchisor had not otherwise taken steps to control security measures at the site.
In short, while merely maintaining a vacant lot does not automatically result in liability, exercising control or voluntarily assuming responsibility for the lot’s maintenance could expose a person to liability for injuries occurring on the premises.
Know the Law is a biweekly column sponsored by McLane Middleton. Questions and ideas for future columns should be emailed to knowthelaw@mclane.com. Know the Law provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your particular situation.