That Basic Law of Attractive Nuisance and Premises Liability

Premises liability means a landowner’s liability for certain torts that take place on an immovable property. Premises liability law refers to the set of laws that make an owner or possessor of land or premises responsible for certain injuries suffered by persons who are present on the premises. For purposes of this analysis, the person who owns the land is called an owner or possessor, and those who enter into the premises of another is called a visitor. Visitors can be classified into invitees, licensees, or trespassers.

The duty of care owed by an owner normally varies depending upon the visitor’s status. A property owner or possessor usually owes the same or similar duty of care to both invitees and licensees. In the case of a trespasser s/he owes only a lower duty of care, because an owner or possessor does not owe a duty to warn a trespasser about dangers naturally occurring on the premises. However, if an owner or possessor is aware of a trespasser’s presence, then a duty to warn such trespasser of dangerous conditions on the property arises upon the owner or possessor. Further, under the doctrine of ATTRACTIVE NUISANCE even a trespasser can be owed a higher duty of care as discussed further below.

This article shall briefly describe the concept of premises liability and how it relates to the doctrine of attractive nuisance in the United States.

 

The Basic Law of Duty of Care for Premises

Injuries suffered by visitors on premises generally will make an owner or possessor potentially liable for the damages caused by the accidents.

Generally, the liability of an owner or possessor depends upon the following factors:

• the visitor’s status; and
• the fact regarding whether the injury could have been reasonably prevented by an owner or possessor.

Therefore, in order to impose premises liability the following conditions must be satisfied:

• that the defendant must possess the land or premises;
• that the plaintiff should be an invitee or a licensee; and
• that there was a negligence or wrongful act on the part of the defendant.

Additionally, in recent years, premises liability law includes injury caused by third persons within the scope of an owner’s or possessor’s liability. Therefore, a property owner or possessor can be made directly or vicariously liable for injuries not caused directly by an owner or possessor.

The liability of an owner or possessor may extend not only to those entering a home, business, or surrounding area but also to those accessing the public sidewalks in front of the property.

 

Use of Property and Duty of Care-Doctrine of Nuisance

Land owners are responsible for injuries suffered on their property when they are negligent or act without due care. The liability of owners and occupiers of property will vary depending on the legal rules and principles in place in the state where the premises liability injury occurred.

A land owner exercises an indefinite right to use, control, and dispose of his/her property. However, the owner must use his/her property as not to injure that of his/her neighbor. This principle of law finds expression in the maxim ‘sic utere tuo ut alienum non laedas’, means ‘one must so use his own rights as not to infringe upon the rights of another.’ Fleming v. Lockwood, 36 Mont. 384, 388 (Mont. 1907).

When a landowner in the use of one’s own property causes injury to another by willful misconduct or negligence, ‘sic utere tuo ut alienum non laedas’ is the fundamental principle on which liability of a landowner can be predicated. However, the maxim does not mean that one must never use his own property in such a way as to do any injury to his neighbor. It means only that one must use his/her property so as not to injure the lawful rights of another. Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc., 114 So. 2d 357, 359 (Fla. Dist. Ct. App. 3d Dist. 1959).

Additionally, an owner or occupant of property must use the premise in a way that will not be a nuisance to other owners and occupants in the same community. Anything which annoys or disturbs one in the free use, possession, or enjoyment of his/her property or which renders its ordinary use or occupation physically uncomfortable may become a nuisance. It is often the duty of the state to restrain such acts. Civil actions for nuisance may be brought in some instances. The law of private nuisance is founded on the fundamental rule that every person should so use his/ her own property as not to injure that of another. When the possessor of real property creates a nuisance by the use of the land, s/he is subject to liability. This is explored in more detail in our article on nuisance.

 

Strict Liability

An owner or possessor of premises incurs absolute or strict liability (liability imposed without proof of negligence) when:

• the owner’s conduct was in violation of certain statutes, ordinances, or regulations;
• an injury is suffered by another as a result of an occurrence on the premises of the defendant, regardless of the possessor’s fault; or
• the owner keeps in his/her property certain substances which would cause injury to others when it is allowed to escape.

 

Negligence of Property Owner

The reader should first read our article on Torts.

Generally, a private premises owner is liable for two types of negligence in failing to keep the premises safe:

• negligence arising from an activity on the premises; and
• negligence arising from a premises defect.

Negligent activity and premises defect are independent theories of recovery. A recovery on a negligent activity theory requires that the injury be a contemporaneous result of the activity itself than by a condition created by the activity. When a person is injured as a result of a condition on the premises than any conduct occurring at the time of injury, the owner has only a premise defect cause of action. Jenkins v. Home Depot USA, Inc., 2007 U.S. Dist. LEXIS 39075, 16-17 (E.D. Tex. May 30, 2007).

An owner of a premise is not an insurer of the safety of anyone on the premises. An owner of a premise cannot be held liable for an injury incurred by reason of the condition of his/ her premises in the absence of negligence or maintenance of a nuisance that caused the injury.

One of the most commonly used limitations on a property owner’s liability is that the injured person was partially at fault for the incident. A visitor has a duty to exercise reasonable care for his/ her own safety. Where that care is not exercised appropriately, the plaintiff’s recovery may be limited or reduced by his/ her own negligence. Most states adhere to a comparative fault system in personal injury cases. According to the comparative fault system, an injured person’s legal damages will be reduced by a percentage that is equivalent to his/ her fault for the incident. For example, when it is decided that an injured person was 25% liable for an accident and the total damages were $20,000, s/he will receive only $15,000.

When a third person is also liable for the incident, the landowner’s liability is limited. In a leading case in the state of New York, a pedestrian who was hit by a car in the parking lot of a strip mall was unable to sue the defendant mall owner, because the driver and owner of the vehicle were 100% liable for the plaintiff’s injuries. Morales v. Lia, 238 A.D.2d 786, 787 (N.Y. App. Div. 3d Dep’t 1997).

And even a negligent landowner’s duty is limited when the injured person was not ‘invited’ to the property. When a visitor is merely tolerated or is a trespasser, the landowner’s duty is minimized.

 

Status of Entrant and Effect on Liability

Under traditional common law theories, the duty of a possessor of land to a person who enters the premises and is injured because of the condition of the premises depends on the status of the entrant. Entrants are classified as invitees, licensees or trespassers, and the duty that the landowner owes to each class of entrant is different.

It is to be noted that each of these categories corresponds to a different standard of care that is owed to those injured on the owner’s premises. Therefore, a landowner’s duty to a visitor depends on the status of a particular visitor. Once the injured person’s status as a trespasser, licensee, or invitee is established, the next questions are whether the landowner breached the attendant duty and whether any such breach proximately caused the injuries at issue. James v. Alberts, 464 Mich. 12 (Mich. 2001).

The extent of the duty of a landowner to inspect, repair, or warn those who come upon the land as entrants is determined by the test of reasonable care. Likewise, such a person entering upon the land is to be held to the same standard of care as that of a reasonable person under the circumstances then existing. The occupant’s duty will be modified according to the expected use to which the land will be put. The entrant’s duty of the exercise of reasonable care for his/her own safety will likewise vary according to the circumstances under which s/he enters the land. However, a landowner does not have any duty to keep the land in any particular state or condition to promote the safety of trespassers unless the concept of attractive nuisance applies, discussed further below. Gartley v. Chicago Housing Authority, 28 Ill. App. 3d 705 (Ill. App. Ct. 1st Dist. 1975).

The reasonable care standard is a flexible one. It may sometimes involve a duty to prevent foreseeable injury caused by a third person who is on the premise of the defendant. On other occasions, it may impose an obligation to warn guests of an unreasonable, non-obvious danger of which the host is aware. However, the standard does not bind homeowners to anticipate and guard against what is unusual and unlikely to happen.

It can be seen that the historical classifications of the degrees of care owing to visitors upon land are undergoing gradual change in the law in favor of broadening the application of a general tort obligation to exercise reasonable care against foreseeable harm to others. Butler v. Acme Markets, Inc., 89 N.J. 270 (N.J. 1982). Each State has its own law and rules that apply.

 

Determination of Status of Entrant

As stated above, generally, the status of a person entering the land of another is characterized as follows:

• invitee,
• licensee, and
• trespasser.

Different standards of care are provided depending upon whether a visitor is an invitee, a licensee, or a trespasser.

An invitee is a person who enters onto the property of another at the express or implied invitation of the property owner. The invitees’ designation is limited to those persons who enter or remain on land upon an invitation which carries with it an implied representation, assurance, or understanding that reasonable care was used to prepare the premises, and make them safe for their reception. The visitor is considered an invitee especially when s/he is upon a matter of mutual interest or advantage to the property owner. Sims v. Giles, 343 S.C. 708 (S.C. Ct. App. 2001).

An invitee may fall within one of three categories such as public invitee, business visitor, or social guest, to each of whom the landowner owes a duty of reasonable care. It is to be noted that the owner of property owes to an invitee or business visitor the duty of exercising reasonable or ordinary care for his/her safety, and is liable for injuries resulting from the breach of such duty. The landowner has a duty to warn an invitee only of latent or hidden dangers of which the landowner has or should have knowledge. Lanier Constr. Co. v. Bailey & Yobs, Inc., 384 S.C. 275 (S.C. Ct. App. 2009).

However, a person may be an invitee as to certain parts of the premises but not as to others. The occupant may be held liable only where it appears that the victim sustains the injury while using a part of the premises which is designed for his/her accommodation or use. A recovery is not sustainable where the evidence leads to the conclusion that it could not be reasonably anticipated that s/he would attempt to go to the place in which the injury occurs. Burton Constr. & Shipbuilding Co. v. Broussard, 154 Tex. 50 (Tex. 1954).

If an invitee involuntarily moves from the area encompassed by the original invitation to another part of the landowner’s premises, s/he may retain his/her status as an invitee. However, if an invitee voluntarily exceeds the area to which the original invitation extends and goes to another area, then s/he loses his/her status as an invitee.

A licensee is a person who is privileged to enter or remain upon land by virtue of the possessor’s consent. In other words, a licensee is one who enters the premises with the express or implied permission of the possessor for his/her own purposes which has no connection with the interests of the possessor. Alexander v. General Acci. Fire & Life Assurance Corp., 98 So. 2d 730 (La.App. 1 Cir. 1957). Normally, the duty of a landowner to a licensee is to warn of known dangers which the licensee is unlikely to discover and to refrain from wanton negligence or willful misconduct.

A trespasser is one who intentionally and without consent or privilege enters another’s property. The only duty of care a property owner owes to a trespasser is to refrain from willfully or wantonly injuring the intruder. Pinal v. Ocean Ship Supply, 410 So. 2d 1007 (Fla. Dist. Ct. App. 3d Dist. 1982).

A landowner is usually not liable for injury to a trespasser caused by the landowner’s failure to exercise reasonable care to put his/her land in a safe condition for the trespasser, or to carry on his/her activities in a manner which does not endanger the trespasser. Miller v. General Motors Corp., 207 Ill. App. 3d 148 (Ill. App. Ct. 4th Dist. 1990).

Note that a licensee who goes beyond the rights and privileges granted by the license become a trespasser. Thus, a person who is invited or permitted to enter a particular part of the land becomes a trespasser if s/he enters another part of the land. If a person while lawfully on the property of another as an invitee leaves that portion of the property on which s/he has been invited, or uses the property on a venture in his/her own interests and not within the scope of his/her invitation, then s/he loses his/her status as an invitee and becomes a trespasser or mere license. Burton Constr. & Shipbuilding Co. v. Broussard, 154 Tex. 50 (Tex. 1954).

Similarly, sometimes a worker on premises loses his/her status as invitee when the worker exceeds the scope of the work. If the invitee goes outside of the area of his/her invitation, then s/he becomes a trespasser or a licensee. It is to be noted that in premises liability cases, an invitee is offered the utmost duty of care by a landowner and a trespasser is generally offered the least.

 

Child Entrants

A child who enters the premises of another is also classified as an invitee, a licensee, or a trespasser. The duty a landowner or occupier owes a child depends on which of the three status categories applies.

Generally, the duty owed to a child licensee and trespasser is:

• to ensure not to impose a willful or intentional injury upon them; and
• to warn them of any known dangers which would not be open to their ordinary observation, upon discovery of their presence.

The duty of care that must be exercised by a landowner or possessor in case of a child invitee is much higher compared to the care offered to both child licensees and child trespassers. In most jurisdictions, the duty of care offered to a child invitee must be the highest duty of care rather than only reasonable care.

Some courts have abolished the common-law status distinctions of invitee, licensee, and trespasser in determining the duties and liabilities of an owner or occupier of land with respect to persons injured on the land. However, some courts continue to use the status distinctions. The reader should obtain access to the state law of the property location to determine the criteria used in that state.

Note that some courts have put the child licensees in the category of child invitees so that the duty owed by an owner or occupier of land to invitees and licensees are the same. Hence, the duty owed to both child invitees and child licensees is the reasonable care under all circumstances. Jones v. Hansen, 254 Kan. 499 (Kan. 1994).

However, the courts have further observed that by applying the duty of reasonable care under all circumstances there can be limits to reasonable care. For example, a business proprietor has a duty to use ordinary care to keep those portions of the premises that are expected to be used by business invitees in a reasonably safe condition. However, a proprietor or operator of a trade or business need not be an absolute insurer of the safety of its customers. Sewell v. Wal-Mart Stores, Inc., 1992 U.S. Dist. LEXIS 12659 (D. Kan. Aug. 5, 1992).

 

Attractive Nuisance and Trespassers

The attractive nuisance doctrine was developed as an exception to the general rule that a landowner owes no duty to a trespasser except to refrain from causing willful and wanton injury. The doctrine mainly stands for the benefit of children. The doctrine recognizes that children, because of their various ages and levels of maturity are incapable of understanding or appreciating dangers or risks on the premises. Idzi v. Hobbs, 186 So. 2d 20 (Fla. 1966).

According to the doctrine, a landowner will be held liable for injuries to children trespassing on the land, if the injury is caused by any hazardous condition or object on the land, that is attractive to curious children who are unable to understand the risk involved in such condition or object. For example, a landowner will be held liable for injuries caused by abandoned cars, unguarded swimming pools, open pits, and abandoned refrigerators. Hence, the doctrine, as a general rule, obligates landowners to exercise reasonable care to safeguard children from dangerous conditions on their property. Kessler v. Mortenson, 2000 UT 95 (Utah 2000).

In Jarvis v. Howard, 310 Ky. 38 (Ky. 1949), the court observed that a good definition of the doctrine is that, “one who maintains upon his premises a condition, instrumentality, machine, or other agency which is dangerous to children of tender years by reason of their inability to appreciate the peril therein, and which may reasonably be expected to attract children of tender years to the premises, is under a duty to exercise reasonable care to protect them against the dangers of the attraction.”It was in the ancient case R.R. Co. v. Stout, 84 U.S. 657 (U.S. 1874), that the doctrine was established. In that case an injury was sustained by a child while playing upon an unguarded, unlocked railroad turntable. The court while holding the railroad company that owned the turntable liable, observed that the defendant’s knowledge that children were playing on the turntable was sufficient to constitute the liability, even if the child was concededly a trespasser.

The doctrine is based upon the theory that the thing which lures or attracts a child of tender years is equivalent to an invitation to the child to play with the dangerous instrumentality. Hence, the owner has a duty to take reasonable precautions to protect the child against the dangers of the attraction.

But every instrumentality attractive to a child does not constitute an attractive nuisance. Jarvis v. Howard, 310 Ky. 38 (Ky. 1949).

The elements of the doctrine are as follows:

• “that a condition or instrumentality existed which was dangerous in itself and likely to or probably would cause injury to those coming into contact with it;
• that it was attractive or enticing to young children;
• that plaintiff was incapable, by reason of his age, of comprehending the danger involved;
• that it was left unguarded and exposed at a place where children of tender years were accustomed to resort, for play or amusement or gratification of youthful curiosity; and
• that it was reasonably practicable and feasible either to prevent access by children or else to render it innocuous without obstructing any reasonable purpose or use for which it was intended”.

See Schneider v. Seattle, 24 Wn. App. 251 (Wash. Ct. App. 1979).

Pursuant to the doctrine, the common law duty owed to a child trespasser is different from that owed to an adult trespasser. With respect to a trespasser, the duty of a landlord is only to refrain from injuring a visitor by willful or wanton conduct, while in the case of a trespassing child, a landowner owes an additional duty to exercise reasonable care to avoid conduct constituting ordinary negligence. The basic reason for imposing additional care to child trespassers is children’s inability to protect themselves against the peril encountered due to immaturity and lack of judgment.

However, the doctrine applies only in the following circumstances:

• where the presence of children could be reasonably anticipated; and
• where measures to protect children can be adopted without placing too heavy burden upon the owner’s unrestricted use of the land.

See Nesmith v. Starr, 115 Ga. App. 472 (Ga. Ct. App. 1967).

Hence, the doctrine is rendered only a limited application and is employed only with caution. The doctrine is not applied in the following cases:

• where the doctrine imposes a tremendous burden on a property owner;
• where the use of land is dangerous only to trespassers and the courts are reluctant to impose a restraint upon an owner’s use of land; and
• where it is in derogation of the ordinary rules of negligence.

Since the classification of children as trespassers, licensees, or invitees is not a controlling factor in applying the doctrine, several jurisdictions have applied the doctrine in situations where it was difficult determine a child’s status as an invitee or a licensee.

In general, most states have adopted either the doctrine itself or some variation of it. Alabama Power Co. v. Guy, 281 Ala. 583 (Ala. 1967). However there are some states that have apparently or expressly rejected the doctrine. Instead these states use the dangerous instrumentality doctrine, which does not require the element of attraction.

The doctrine is also known as turntable doctrine, trespassing child doctrine, the child trespasser exception, the infant trespasser, dangerous agency, or playground rule, the trap or implied invitation theory, or simply the special rule.

 

Conclusion

Myths abound in media about large verdicts awarded to plaintiffs based on unreasonable grounds. A comomon myth is the massive verdict awarded to a woman against McDonalds because the coffee burned her. (In reality, that same outlet had burned numerous persons in the past, was serving the coffee much hotter than the manufacturer recommended and had been warned to cease that practice in the past.) The same type of myths apply to owners sued by burglars trespassing and having to pay out millions of dollars in damages. (Again, that story derived from an owner who created a deadly booby-trap on his property which maimed a person permanently. As the court there stated, one does not cut off the legs of a burglar to punish them. It was the unreasonableness of the trap, not protecting oneself from trespass, that created that liability.)

The actual law usually imposes reasonable duties upon the owner of land and the concept of attractive nuisance to protect children is a logical extension. One should not assume, however, that children get a “free ride.” In one case over a decade ago, the jury refused to find liability against a school district when a child climbed over a fence, ignored warning signs, crawled into a construction site and fell and injured himself. The defense verdict was awarded despite the fact that the property was adjacent to a housing complex. The jury concluded that the fence and signs were reasonable steps to prevent attractive nuisance. Common sense is the best test for determining most premises liability, whether you are the injured party or the party being sued.