P is a social guest, hence a licensee. A flowerpot fell from the balcony and injured P. Is the homeowner liable to P? Suppose that the homeowner claims that she was not aware of the danger.

Jurisdiction: the US, common law.

  • 3
    What is the jurisdiction? What country? If a federal country, what province or state? Laws on this vary, and no useful answer can be given until we know where, unless someone just picks a jurisdiction. Also, was the flowerpot carelessly placed so that its fall was foreseeable? Dec 2, 2020 at 3:40
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    In addition, what do you mean by "a licensee"?
    – Ryan M
    Dec 2, 2020 at 4:50
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    @Ryan M under common law, a person invited to be present at a dwelling is "licensed" to be there, and is in a different legal position from a person not authorized to be present, such as an intruder, burglar, etc. The home owner has a greater duty to provide a safe environment toward such a licensee, and in some cases this makes a difference in liability for damages. This rule may be changed by local law in various countries, however, or not apply in civil-law countries. Dec 2, 2020 at 16:29
  • Sorry, edited to add more info. On one hand, if the homeowner was not aware of the danger, no duty to warn a licensee. On the other hand, Res ipsa loquitur would assign liability to the homeowner.
    – Adam
    Dec 2, 2020 at 23:23
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    How was the homeowner unaware of their own flowerpot? Dec 3, 2020 at 13:25

1 Answer 1


The facts of the flower pot would determine the outcome. The legal question is whether the owner was "negligent". A claim of ignorance is insufficient, what matters is whether the owner departed from what an ordinary reasonable person would have done in similar circumstances. You can write dozens of scenarios that yield different conclusions. For example, was the area underneath the flower pot a place where no reasonable person would be expected to be? Did some other person surreptitiously place the pot in a location, or did they release the moorings and give it a shove? How is it credible that the owner was not aware that there was a flower pot on the balcony? Res ipsa loquitur is not applicable since accidents happen. Things fall all the time, they do not necessarily fall because of something that the person directly controls, you have not proven (and we can't assume) that the victim is blameless, and the defendants explanation is quite plausible. You can of course rewrite the scenario to make it clearer that this is blatant negligence. A starting point would be to say exactly how the pot fell and why the victim was under the pot.

  • Just one clarification. Usually, it is not possible to know as a matter of law, whether an action constitutes negligence even if you have perfect knowledge of all of the facts, e.g., as in a case I have right now in my office where we have a video of the accident. Whether a particular set of events constitutes negligence or not is generally a question of fact to be resolved by the jury (or the judge in bench trial) following a full evidentiary trial, and not a question of law. Exceptions exist for negligence per se where the alleged act is a violation of a statute or regulation.
    – ohwilleke
    Dec 5, 2020 at 0:06

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