§ 9.01 Overview [145-146]

 

Under the common law approach, the measure of the duty owed depends on the status of the person entering the land - whether the entrant is a “trespasser,” a “licensee,” or an “invitee.” The status of the person entering the land determines the standard of care owed by the land occupier. Some jurisdictions have rejected the status approach to liability, using a generalized duty of ordinary care instead.

           

§ 9.02 The Common Law Status Approach [146-155]

 

The common law approach to landowner liability measures the duty owed by a land occupier to persons entering the property by the status of the entrant. Because of the value attached to private land ownership, the law developed in a way that was highly protective of these interests.

 

            [A] Trespassers

 

A “trespasser” is one who enters or remains on the property in the possession of another without the permission (express or implied) of the land occupier. The duty owed to trespassers was (and in many ways remains) extremely limited.  The only obligation initially imposed on land possessors was to refrain from wilfully harming the trespasser. Courts expanded the duty owed to trespassers to include requiring warnings about “traps.” At the outset, the concept of “traps” was narrowly defined. More recently, courts have engaged in some creativity, adopting a broader interpretation of “trap.”

           

                        [1] Frequent or Known Trespassers

 

In most common law jurisdictions, the traditional rule has been altered in the case of known or frequent trespassers. Where a land occupier actually is aware of the presence of a trespasser and knows that the trespasser is approaching a non-evident artificial (human made) condition, the land occupier is obligated to warn the trespasser if there is danger of serious bodily harm or death. Also, if the land occupier is on notice of frequent trespassing, or has reason to know of such, an obligation to warn of hidden dangers known to the land possessor and risking serious injury or death may be imposed. No warning need be given of conditions on the land that a trespasser would be expected to discover or which are inherent in the use of the land. Further, the land occupier who knows of a trespasser's presence must use reasonable care for the protection of the trespasser in carrying on activities.

 

                        [2] Child Trespassers

 

The rules barring recovery for the majority of injured trespassing children caused discomfort for the courts. By the 1870s, courts began broadening the land possessor's duty to trespassing children in limited situations. This more lenient approach has become known as the “attractive nuisance doctrine.” Under the Restatement a child trespasser will be owed a duty of ordinary care if a judge balances several factors and finds that they support providing the child trespasser special treatment. [See Restatement § 339.]

           

            [B] Licensees

 

A licensee is someone who enters the land with the express or implied consent of the land possessor, as is the case with social guests. The licensee takes the property in the condition in which the land possessor uses it.  A land possessor may be liable to a licensee injured by a condition on the property where the land possessor knows of a dangerous condition on the property, fails to make the condition safe or to warn the licensee about the risk involved, and the licensee does not know about the danger nor would be expected to discover the dangerous condition. Where the presence of a licensee is known or should be known to the defendant, most jurisdictions require land possessors to use reasonable care in carrying out activities on the property.

 

            [C] Invitees

 

There are two primary types of invitees: business invitees and public invitees. Business invitees are on the premises for the potential financial benefit of the land occupier. Public invitees are on land held open to the public at large.  As to invitees, land possessors must use reasonable care in maintaining the premises and in their activities. This often entails taking affirmative steps to discover dangers on the property.  The obligation of the land possessor to an invitee then is one of reasonable care.

 

            [D] Determining Status

 

The determination of the plaintiff's status can be challenging, and has a profound impact on the plaintiff's ability to recover. Where there are disputed facts affecting the plaintiff's status, the jury ultimately decides the appropriate classification. Further, a plaintiff's status can change based on where she is at the time of her injury.

 

§ 9.03 A Unitary Standard [155-158]

 

A significant minority of states have rejected the common-law status approach. California was the first state to replace the status approach to land possessor liability with a generalized reasonable person standard. [See Rowland v. Christian, 443 P.2d 561 (Cal. 1968).] Under this approach a duty of reasonable care is owed any land entrant regardless of status. Some jurisdictions have elected to take a middle approach of merging the licensee and invitee categories while retaining the trespasser classification. There is a significant litigation difference between the common-law approach and that of the generalized reasonableness standard: the unitary standard permits more cases to get to the jury than the status approach.

 

§ 9.04 Land Possessor Duty to Those Outside the Land [158-159]

 

The common law rule provides that a land possessor owes no duty to those outside the land for natural conditions on the land. Where harm is occasioned by an artificial condition or the land possessor's activity, however, a duty is recognized. Some jurisdictions have rejected the no-duty rule regarding natural conditions and have replaced it with a generalized duty of reasonable care.

 

§ 9.05 Landlord-Tenant Relations  [159-160]

 

Initially the law of property governed the landlord-tenant relationship and, because the lease was viewed as a complete conveyance of the property investing full control in the tenant during the duration of the leasehold, the lessor owed no tort duty to the lessee.  Now, all jurisdictions have come to recognize some or all of the following exceptions: common areas, negligent repairs, undisclosed dangerous conditions known to the lessor, lessor's covenant to repair, premises leased for admission to the public, and dangerous condition to persons outside the leased premises.  Most jurisdictions have required a plaintiff to fall within one of these recognized exceptions in order to establish a tort duty owing from the landlord. Some jurisdictions, however, have expanded landlord liability to the point that a landlord owes a duty of reasonable care to all on the land regarding conditions on the leased premises.