Premises Liability Newsletter

It is a fact of life that, not uncommonly, people get injured or killed while physically on real estate that does not belong to them. The legal question necessarily arises whether the real estate owner is liable for such an injury or death on his or her property. The answer is that it depends upon which state’s law applies and upon the individual circumstances. In some states, the legal status of the injured person vis-à-vis the particular property is relevant.

Traditional Tiered Approach

In feudal England, complex law evolved surrounding property ownership and use, as your legal relationship to the land reflected your rights and social status. Traditional visitors’ status fell basically into these categories:

• Invitee: A person invited expressly or by implication to enter onto property for a reciprocal business purpose. A landowner has the duty to an invitee to keep the premises reasonably safe and to warn of hidden dangers.
• Licensee: A person allowed to use another’s premises for his or her own benefit, but with no benefit to the landowner. A landowner may not act in a willful, wanton or grossly negligent manner that could harm a licensee and the landowner must warn a licensee of known hazardous conditions with which the licensee is unfamiliar.
• Trespasser: A person who enters the land of another without permission. A landowner may not act in a willful or wanton manner that could harm a trespasser and the landowner must warn a known trespasser of hidden dangers.

Many US states still recognize these legal distinctions and require landowners to fulfill these varying duties to visitors depending up their legal status. For example, an owner would owe a higher duty to keep the real estate reasonably safe for an invitee, but for a trespasser, the owner only has to be sure not to act willfully or wantonly.

Some states have lumped invitees and licensees into the same category since their entry onto the property is more foreseeable, but those states still retain the separate status of wrongful trespassers. Most states treat social guests like licensees, but sometimes like invitees.

Modern Uniform Approach

Several states have adopted a modern, more flexible approach that extinguishes the distinction between the three categories of visitors. These states impose a general duty of care on the landowner to maintain reasonably safe premises under the particular circumstances for all visitors. These jurisdictions focus on the foreseeability of injury and the reasonableness of the owner’s property maintenance, rather than on the legal status of the visitor.

Attractive Nuisances

In the situation where a trespassing child is injured, the principle of attractive nuisance has been recognized by almost all the states. This doctrine recognizes the reduced capacity of a young person to ascertain danger, making a landowner liable for harm to a trespassing minor injured by an artificially created condition, but not by a natural feature of the land, where:

• Children are likely to trespass and have contact with the condition
• The condition creates an unreasonable risk of serious harm to children
• Children are unlikely to understand the danger
• The danger outweighs the inconvenience of eliminating the danger

Some states also require that the owner exercise reasonable care to remove the danger.

In states that have not adopted the doctrine of attractive nuisance, some type of standard is usually applied that considers reasonable care under the circumstances or foreseeability of harm.

Conclusion

This article is a broad summary of the basic principles of landowner liability. The situation can get even more complex if the premises on which a third party is injured are leased by the owner to another. An attorney knowledgeable about the details of premises liability law in your jurisdiction can advise you as a landowner or leaseholder, or if you or your loved one is injured on land belonging to another.

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