LAW 512-001 – Torts II

Premises Liability


In general, there is no duty to people off of one's property for natural land conditions.

However, landowners are liable for trees on their property that they know or should know are defective. In such a case they must take reasonable reasonable precautions.

The duty a rural tree-owner owes people on adjoining highways and sidewalks is determined by factor balancing of patterns of land use, road use, and traffic density.

Some states let neighbors cut roots or branches that come over onto their property in "self-help."

One cannot use his land to interfere with the public's right to lawfully use public highways.

A landowner has the duty to exercise reasonable care in the use of his land so as to prevent injury to travelers lawfully using the highways adjacent thereto.

If a natural condition is altered, it becomes artificial and reasonable care is needed for the protection of those outside the premises.

A land owner owes a duty to travellers who fall into excavations on land immediate adjoining a highway or sidewalk.

  • This extends to those who deviate intentionally from a highway or sidewalk for a casual purpose connected with travelling.

A land owner has no duty to remove natural snow or ice.

A land owner has no duty for artificial conditions unless he knows or should know that it poses a risk to someone.

The duty that a landowner owes someone on his land depends on that person's status.

There are three different statuses people can have under the common law.

  1. Trespasser

    A trespasser is one who comes onto another's land without permission or privilege.

    In general, under both the common law and Restatement Second, a landowner owes no duty of care to a trespasser.

    Exceptions:

    1. Discovered trespassers
      • Land owners/occupiers must use reasonable care to avoid injuring discovered trespassers by an active operation
      • Land owners/occupiers must warn of or make safe known dangerous artificial conditions unlikely to be discovered.
      • The Restatement Second also requires warning of passive conditions.
    2. Frequent trespassers to a limited area of land
      • When trespasser is anticipated, the land owner has a duty to exercise reasonable care to avoid reasonably foreseeable risk.
      • Defendant must anticipate (know or be reasonably expected to know) the trespassers and exercise reasonable care in his activities for their protection.
    3. Tolerated intruders
      • Continued toleration of a trespassers may amount to permission, turning them into licensees instead.
  2. Licensee

    A licensee is one who comes onto another's land with permission or privilege.

    An owner/occupier has a duty to warn of or make safe a known dangerous condition that isn't obvious.

    An owner/occupier has a duty of reasonable care for his active operations for protection of licensees once discovered and those whose presence might be reasonably anticipated.

    Police officers and firefighters are usually classified as licensees.

  3. Invitee

    And invitee is one who enters a premise on express or implied permission concerning business for the benefit of the owner/occupier.

    An owner/occupier's duty to an invitee is to use reasonable care to keep the premise in a reasonably safe condition.

    • This includes a duty to make reasonable inspections to discover dangerous conditions and to make them safe.

    An owner has no duty to invitees for hazards which are open and obvious to the invitee.

    An owner may be liable for third-party criminal activity when it is forseeable.

    Public officials like sanitation or safety inspectors are invitees.

Premises Liability Table
Undiscovered Trespasser Discovered Trespasser Child Trespasser Licensee Child Licensee Young Child Licensee Invitee
In General No duty of care Reasonable care to avoid reasonably foreseeable risk Reasonable care to avoid injuring by an active operation Reasonable care to avoid injuring by an active operation Reasonable care to keep the premise in a reasonably safe condition
Patent Natural Hazard No duty of care No duty of care See also: Attractive Nuisance No duty of care Warn of or make safe Make safe No duty of care
Patent Artificial Hazard No duty of care No duty of care See also: Attractive Nuisance No duty of care Warn of or make safe Make safe No duty of care
Latent Natural Hazard No duty of care No duty of care Warn of or make safe Warn of or make safe Make safe
Latent Artificial Hazard No duty of care Warn of or make safe Warn of or make safe Warn of or make safe Make safe
Attractive Nuisance

An attractive nuisance is a dangerous feature on property that has an unusual characteristic or nature that makes it attractive to children, who try to convert it to a thing of amusement.

The owner/occupier must use reasonable care to protect children when the following elements are met:

  1. The owner is aware or should be aware of the dangerous condition.
  2. The owner knows or should know that children are in the vicinity.
  3. The condition is likely to cause injury if a child encounters it because of the child's inability to appreciate risk.
  4. The magnitude of the risk outweighs the utility or expense to remedy.

In general, there is no liability upon the landlord for defective conditions existing at the time of the lease.

However, the landlord must disclose all known concealed dangerous conditions to the tenant at the time of the lease.

A landlord is liable for injury resulting from him breaking a contract to repair something.

The implied warranty of habitability creates a duty on the part of the lessor to deliver the premises in a habitable condition.

The minority says that a landlord must exercise ordinary care toward his tenant and others on the premises with permission.

A landlord has a duty to take reasonable precautions against criminal acts against his tenants. Courts use three factors in determining this duty:

  1. Ability to exercise control
  2. Advantageous position in exercising control and minimizing risk
  3. Knowledge about the rise of criminal behavior.