35.3 Owners & Occupiers of Land
Key Takeaways
- Under the traditional approach, a land possessor owes an undiscovered trespasser only a duty not to injure willfully or wantonly, and owes a discovered or anticipated trespasser reasonable care in its activities and a warning of known, concealed, highly dangerous artificial conditions.
- Under the attractive nuisance doctrine, a possessor must use reasonable care to protect child trespassers from an artificial condition that poses an unreasonable risk of serious harm when children are likely to trespass, cannot appreciate the risk, and the burden of eliminating the danger is slight compared with the risk.
- Licensees, such as social guests, must be warned of or protected from concealed dangers the possessor knows about, while invitees, such as customers and visitors to land open to the public, are also owed reasonable inspection to discover hidden dangers.
- Many states have abolished some or all of the entrant categories in favor of reasonable care under the circumstances, and an open and obvious danger usually reduces but does not always eliminate the possessor's duty.
- Special rules cover firefighters and police injured by the risks of their work, recreational users of land opened to the public without charge, people outside the land harmed by its conditions, and the liability of landlords and sellers for dangerous conditions.
35.3 Owners & Occupiers of Land
NCBE's outline lists claims against owners and occupiers of land among the special rules that define negligence liability. In a jurisdiction that keeps the traditional approach, classify the entrant at the time and place of injury before deciding what duty the possessor owed.
The Traditional Entrant Categories
┌─────────────────────────────┐
│ Premises Liability Statuses │
└──────────────┬──────────────┘
│
┌───────────────────────────┬────────┴───────────────────┬───────────────────────────┐
▼ ▼ ▼ ▼
┌─────────────────┐ ┌─────────────────┐ ┌─────────────────┐ ┌─────────────────┐
│ Undiscovered │ │ Discovered/ │ │ Licensee │ │ Invitee │
│ Trespasser │ │ Anticipated │ │ (Social Guest) │ │(Business/Public)│
├─────────────────┤ ├─────────────────┤ ├─────────────────┤ ├─────────────────┤
│• No duty of care│ │• Duty to warn of│ │• Duty to warn of│ │• Duty to inspect│
│• No duty to │ │ known, hidden, │ │ known, hidden │ │ and repair all │
│ inspect/warn │ │ artificial │ │ hazards │ │ concealed traps│
│ │ │ deadly traps │ │• No inspect duty│ │• Highest duty │
└─────────────────┘ └─────────────────┘ └─────────────────┘ └─────────────────┘
- Undiscovered Trespasser: An individual who enters land without permission and whose presence is unknown to the possessor. Duty: No duty of reasonable care as to conditions or activities, although the possessor may not willfully or wantonly injure the trespasser, such as with a hidden trap.
- Discovered or Anticipated Trespasser: A trespasser whom the possessor knows is on the land, or who frequently crosses a defined section of the property (e.g., a beaten path across a railroad yard). Duty: Must warn of or make safe artificial conditions that are highly dangerous (risk of death or serious harm), concealed from the trespasser, and known to the possessor ("known artificial traps"). No duty for natural conditions or ordinary hazards. The possessor must also use reasonable care in carrying on activities, such as operating machinery or vehicles, that could harm a known trespasser.
- Child Trespasser — The Attractive Nuisance Doctrine (Restatement § 339): A land possessor owes a duty of reasonable care to eliminate or protect child trespassers from dangerous artificial conditions if:
- The possessor knows or has reason to know children are likely to trespass;
- The condition is one the possessor knows or should know poses an unreasonable risk of death or serious bodily injury;
- The children, because of their youth, do not discover the condition or realize the risk;
- The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight compared to the risk to children; and
- The possessor fails to exercise reasonable care to eliminate the danger or protect the children. (Note: The condition does not need to attract the child onto the property under modern law).
- Licensee: An entrant who enters with the possessor's express or implied permission for their own purpose or social benefit (social guests, visiting relatives, door-to-door solicitors, and, in many states, police officers and firefighters entering in an emergency). Duty: Must warn of or make safe any concealed dangerous condition (natural or artificial) known to the possessor. There is no duty to inspect for unknown hazards.
- Invitee: An entrant who enters by invitation for a purpose connected with the possessor's business or economic benefit (customers, clients, repair workers) or as a member of the public for a purpose for which the land is held open to the public (library patrons, museum visitors, churchgoers). Duty: Owed the highest duty of care—the duty to use reasonable care to inspect the premises, discover hidden dangerous conditions, and make them safe (or provide an adequate warning).
- Modern Trend (Rowland v. Christian, Cal. 1968): California abolished all three categories in favor of reasonable care under the circumstances. Several other states followed, and many more have abolished only the licensee-invitee distinction, applying reasonable care to all lawful entrants while keeping limited duties to trespassers.
Beyond the Traditional Categories
Changes in Status
An entrant's status can change. A customer who goes beyond the part of the premises covered by the invitation—for example, by entering a store's employees-only stockroom—is no longer an invitee in that area and is treated as a licensee or trespasser there.
Open and Obvious Dangers
Traditionally, a possessor had no duty to warn of dangers that are open and obvious. Under the Restatement (Second) of Torts, however, a possessor may still be liable if it should anticipate harm despite the obviousness, such as when customers are likely to be distracted by displays. In comparative fault states, many courts treat obviousness as bearing on breach and the plaintiff's comparative fault rather than as eliminating the duty.
Conditions Affecting People Outside the Land
- Artificial conditions: A possessor must use reasonable care to prevent artificial conditions, such as a loose sign, from creating an unreasonable risk to people on an adjacent public road or sidewalk.
- Natural conditions: Traditionally, a possessor owed no duty to people outside the land for natural conditions, but many courts now require reasonable care as to trees in residential or urban areas that the possessor knows or should know are decayed.
Firefighter's Rule
Firefighters and police officers generally cannot recover from a person whose ordinary negligence created the emergency that required their presence, for injuries caused by risks inherent in their work. The rule usually does not bar claims based on independent negligence after the responder arrives, hidden dangers the possessor knew about but failed to disclose, or intentional or reckless misconduct. Some states, including New York by statute, have abolished or limited the rule.
Recreational Use Statutes
Nearly all states have statutes encouraging owners to open land for recreational use. An owner who allows the public to hunt, fish, hike, or swim without charge owes no duty to keep the land safe or to warn of dangers, except for willful or malicious failure to guard or warn against a dangerous condition.
Landlords and Sellers
- Landlords: Traditionally, a landlord was not liable for dangerous conditions on premises leased to a tenant, subject to exceptions for common areas the landlord controls, latent defects the landlord knows about but does not disclose, premises leased for admission of the public, furnished short-term rentals, negligently performed repairs, and conditions the landlord promised to repair. Many states now simply require landlords to use reasonable care (Sargent v. Ross, N.H. 1973).
- Sellers: A seller of land who knows of a concealed dangerous condition and fails to disclose it remains liable to the buyer and others on the land until the buyer has had a reasonable opportunity to discover and fix it.
| Entrant | Traditional Duty | Example |
|---|---|---|
| Undiscovered trespasser | Do not injure willfully or wantonly | An unknown intruder at night |
| Discovered or anticipated trespasser | Reasonable care in activities; warn of known, concealed, highly dangerous artificial conditions | People known to cut across a rail yard on a worn path |
| Child trespasser | Reasonable care under the attractive nuisance doctrine | Children known to play on unsecured construction materials |
| Licensee | Warn of or make safe known concealed dangers; reasonable care in activities | A social guest |
| Invitee | Reasonable inspection, repair, and warning of concealed dangers | A customer or a public library visitor |
| Modern approach in some states | Reasonable care under all the circumstances | Lawful entrants, and in some states all entrants |
A patron entered a retail grocery supermarket to purchase produce. While walking down a grocery aisle, the patron slipped on a puddle of spilled cooking oil and fell, fracturing his hip. The oil was clear, odorless, and had leaked from a defective bottle dropped by another customer twenty minutes earlier. The supermarket employed a maintenance worker whose job description required him to walk the aisles every fifteen minutes to discover and clean spills. The worker had skipped his sweep to take an unauthorized smoke break. In an action for negligence brought by the patron against the supermarket, what is the duty owed by the supermarket?
A homeowner invited a friend over for dinner. The homeowner knew that a board on the back deck stairs was rotten and had meant to fix it, but the rot could not be seen from the top of the stairs. The homeowner did not mention the board. As the friend walked down the stairs to the yard after dinner, the board broke, and she was injured. The jurisdiction retains the traditional entrant categories. Is the homeowner likely to be liable?
A construction company stored large concrete drainage pipes stacked on a slope, without blocks to keep them from rolling, at a building site next to a residential neighborhood. The company knew that neighborhood children often played on the pipes after work hours. Wedging blocks under the pipes would have cost about $200. An 8-year-old climbed onto the stack, a pipe rolled, and the child's leg was crushed. The child's parents sued the company, which argued that the child was a trespasser. What is the likely result?