Landowners and Occupiers – Torts


Duty Rules are made by courts as a matter of law; they are about the choice of a rule to be applied to a category of conduct; they are not about the facts of the case
Once adopted, juries apply duty rules to the facts of the case–unless a reasonable jury could only reach one conclusion
No Affirmative Duty to Control Third Party Conduct or to Warn of Danger
Nonfeasance: no duty to come to aid of others unless special relationship
Do psychiatrists have a duty to warn third parties about dangers posed by a patient? YES
Tarasoff assessed this by using Rowland policy factors, emphasizing foreseeability and the court’s general dislike of no-duty rules
But did not decide if foreseeability was sufficient to create a duty
Instead, it expanded the special relationship exception to the no-duty-to-warn rule to include psychiatrist’ relationship to his patient– changing the prior rule which had required a special relationship to both parties.

Landowners and Occupiers
1. Generally
Traditional Rules
Child trespassers
Recreational use statutes
Assessed trad. rules using Rowland duty/policy factors, e.g. policy of preventing future harm
Rejected trad rules and held landowners have duty of care to all on their property
But recreational use statute: abandoned suitability exception
Restatement Third: Duty of due care to all except “flagrant trespassers,” such as burglars
2. Landlords
Traditional rules

California assessed trad. using Rowland policy factors and rejected; followed Sargeant v. Ross, holding landlords owe duty of care
3. Crime on Premises:

No duty of care to protect against third-party crime unless: 4 different approaches:
a. Aware of specific harm
b. prior similar crime on premises (or nearby)
c. foreseeable harm under all circumstances; not require prior similars
d. Ann M.
High degree of foreseeability required if heavy burden, e.g. security guards; seldom, if ever, satisfied without prior similars (identicals?) on premises
Tract of land divided in thirds
Three people were on the land
1 an adult there to steal a little firewood (treaspasor owed duty of wanted misconduct or concealed trap
ADULT NOT RECREATING he is there to steal —> hes owed care of wanten misconduct or hidden traps
2 child there to play with toy on top of wood stack (innocent trespasser, children may be owed a duty of due care even if they are trespassing)
duty owed to child trespassers is greater than that owed to adults, if child was so young that he wouldnt know the danger
3 child playing on machinery
Factors to consider for Child Trespassers (In past) some jurisdiction use this, not California though pg 200
A possessor of land is subject to liability for physical harm to children trespassing thereon cause by an artificial condition upon the land if:
  • (a) the landowner knows children are likely to trespass
  • (b) landowner knows the or should have know that the condition could cause harm or death to such children
  • (c) the children are too young to discover the dangerous condition
  • (d) the balance of eliminating the danger v the risk to children
  • (e) the landowner fails to exercise reasonable care to eliminate the danger

Would this special rule be more generous or less generous to children than the duty of due care now owed to everyone

This rule above is more restrictive to children trespassers because of all the requirements.
Recreational Use Statute pg 201
Statutes to protect landowners from liability of land used for recreational activities. To prevent landowners from being sued due to injuries from natural dangers. Willful misconduct is usually required for liability. The court statute doesnt say anything about natural dangers or anything, the only reference land used for recreation. Ct of Appeals says recreation statute only applies to areas suitable for recreation, like an open feild, river stream etc. A construction site would not be considered suitible for recreational purposes. Supreme Court say there is no suitability exception, construction sites are covered under RUS.
  • Doesnt say open lands in CA
  • Ct of Appeal says if its not SUITABLE LAND for recreation then it is not covered by statute (THIS HAS BEEN ABOLISHED BY CA Supreme Ct)
    • This means paradoxically that a theif who isnt recreating is owed a duty of due care
  • A child who is recreating is covered under RUS and is not owed due care!!!! (No suitability excuse so that means a constr site is a “Recreational Area” becasue child is recreating)
    • Legislature wont change this because there is no money in it, it would take a lobby group to convince the legis to change it

OLD RULE when you have a party and you serve a drunk person, you may be liable in tort. People went in outcry of these rules and rule was changed within a week!

Rowland v Christiansen –> Abolished three types of distinctions and everyone is owed due care
Some states have only abolished licen/invit but kept trespass distinction
Landlords Also Have a Different Duty of Care pg 209
Traditional OLD Rule –>
  1. Must be a hidden danger that landowner knew but tenet didnt
  2. Premise for public use
  3. Premises under owners care (like pub stairway)
  4. Negligently repaired
These Rules were abolished in some juris but still good in other juris
Sargent v. Ross –> pg 209 changed landowner liability

Duty to protect against crime. pg 210
Four different rules adopted 213-14
  1. Specific Harm Rule – Landlord must be aware of specific imminent harm
  2. Prior similar incidents test – Recency, frequency, and similarity of prior similar crime on premises OR nearby
  3. Totality of Harm – Foreseeable harm under all circumstances, lack of priors does not preclude liability. (Criticized as imposing a “duty to protect”)
  4. Balancing Test – The degree of foreseeability must outweigh the cost to prevent harm. High degree of foreseeability if heavy burden to prevent eg Expensive guards
    1. HOW DOES APPLY TO Ann M?????
No Duty can be triggered by ‘who’ the defendant is.
Special rules as to trespassing children note 8 pg 200-201
Special rules to landlords note10 pg 209
Duty of land owners to protect against 3rd party crime (Kline case pg 210 sometimes there will be duty)
pg 213-214 there are two different rules. first ¶ is the old no duty rule that existed in CA long ago ¶ 2 we show the expansion of liability IF there have been prior similar crimes on the premisis ¶ 3 NO you dont need similar crimes, you only need to find out if the crime was foreseeable ¶ 4 is the CURRENT LAW in CA

According to Wikipedia :
  • Licensee The term is used in the USA torts to describe a person who is on the property of another, despite the fact that the property is not open to the general public, because the owner of the property has allowed the licensee to enter. Where licensees are present, activities conducted on the land by or at the behest of the owner of the land must be conducted with the care that a prudent person would show. A duty to warn arises if there is a harmful condition on the land that is hidden from the licensee, so long as the landowner knows of this condition.
  • invitee is a person who is invited to land by the possessor of the land as a member of the public or one who is invited to the land for the purpose of business dealings with the possessor of the land.The status of a visitor as an invitee (as opposed to a trespasser or a licensee) defines the legal rights of the visitor if they are injured due to the negligence of the property owner.
  • The property owner has a duty to make the property safe for the invitee, which includes conducting a reasonable inspection of the premises to uncover hidden dangers. The property owner also has a duty to warn the invitee of hazardous conditions that cannot be fixed. Furthermore, property owners assume a duty to rescue an invitee who falls into peril while visiting the property. If an independent contractor hired by the landowner injures an invitee (intentionally or through negligence), the owner can be held vicariously liable. This represents the broadest duty of care owed to any class of visitors to the property.
  • An invitee is only an invitee within the scope of permission granted by the landowner. Thus, if an invitee is invited to do business in a store and is injured snooping around in the private storage area, he does not have invitee status in that area

Trespasser traditionally owed no duty, someone who enters land with no permission. Sometimes there is implied permission ie sidewalk for solicitors

Some courts say there is a duty of care to known trespassers
You cant have consealed traps

Licensee is protected just like a trespasser. Know wanted harm, or conseald traps
but also care if you are running your lawnmower.

Invitees the higest held visitor.

Is Cater an invitee or lisensee

Carter v. Kinney, 896 S.W.2d 926 (Mo. 1995) (en banc).

Case Brief

Facts: The Kinneys (D) hosted a bible study meeting at their home. The sessions were sponsored by the Northwest Bible Church and participants signed up for the sessions at the church. The sessions were hosted at various times at the church and at the homes of other members. Carter (P) came to one of the morning sessions, slipped on a patch of ice in the driveway, and broke his leg. Kinney had shoveled the driveway the previous evening and was not aware that ice had formed overnight. D did not receive any financial or other benefit from P in connection with the bible study meeting.

P sued D on the basis that he was AN INVITEE (Are owed a full duty of care) and the trial court granted D’s motion for summary judgment, holding that P was a LICENSEE and that D did not have a duty to warn P of a dangerous condition of which D was not aware. P appealed.

Issue: What is the duty of a possessor to a licensee?

Holding and Rule: The duty of a possessor to a licensee is to make safe only dangers of which the possessor is aware. Social guests in Missouri are licensees (therefore not owed a duty of due care). The court held that it was irrelevant that D had invited P because there was no material benefit motive and it was not extended to the public. D had not thrown open their premises to the public.


A person is not an invitee merely because that person was invited. On exams, always classify each person in a fact pattern as an invitee, licensee, or trespasser and analyze the duty owed to each person.

He did not come here for a material benefit (business purpose OR held open to public = invitee). He was a social guest only held as licensee.

Heins v. Webster County 1996

Facts: Man goes to visit his daughter at the hospital she works at. He says he is there to arrange him playing the part of Santa Clause. He is about to go out to lunch and he opens the main entrance door for his wife and then he slips and falls on the ice and snow that accumulated by the door.

Procedural History: The court found that he was a licensee not an invitee, because he went to see his daughter, and so they entered judgment in favor of the hospital.

Issue: Should the court abolish the common law classification of licensee and invitee and require a duty of care to all nontresspassers?

Holding: Yes.


  • A number of jurisdictions have abandoned this common law classification.
  • MA and CA supreme courts have abandoned the distinction for the policy reason that a visitor’s status should not determine the duty that a landowner owes him
  • This case exemplifies the kind of frustration the common law distinction raises
  • If Heins had been visiting a patient, he would be an invitee
  • Because he was visiting daughter who worked there, he was a licensee
  • The common law distinction should not be able to protect a landowner from liability when he would otherwise be held to a standard of reasonable care
  • There are 7 factors for determining whether a landowner has exercised reasonable care: they are in the case (see below)
Dissent: It is not the court’s function to create liability where the law does not…in this case, a landowner owes a duty of care to an individual who may be engaging in activities on the property without the landowners knowledge or express permission

Mr Heins was there on a social visit AND to discuss business of Santa Claus
Hospital contends his visit was only social.

Court says in this case your not an invitee, your not here for a business purpose.  He is only held to a duty for wanten misconduct or hidden danger traps

Court has made only two categories  (invitees/lisensees anyone here with prmission) AND (trespassers)

Duty to protect against crime. pg 210 (California ADOPTS number 4, other juris use others)

Four different rules adopted 213-14
  1. Specific Harm Rule – Landlord must be aware of specific imminent harm
  2. Prior similar incidents test – Recency, frequency, and similarity of prior similar crime on premises OR nearby
  3. Totality of Harm – Foreseeable harm under all circumstances, lack of priors does not preclude liability. (Criticized as imposing a “duty to protect”)
  4. Balancing Test – The degree of foreseeability must outweigh the cost to prevent harm. High degree of foreseeability if heavy burden to prevent eg Expensive guards
    1. California Uses Rule 4 Balancing test
    2. HOW DOES APPLY TO Ann M?????

Ann M v Pacific Plaza Shopping Center (Pacific Beach, San Diego CA)

There had been some evidence of criminal activity
Bank robbery
Purse Snatching
Plaza said they had no record of these alleged violent acts

Is Plaza liable in Ann M case using the 4 major tests for landowners duty to protect from crime?
  1. NO, Landlord was not aware of specific imminent harm.
  2. Could go either way. There had been prior similar crimes ie Womens pants being pulled down but the Plaza was not aware. Plaza claims they were not aware, but should have known if no other reason than the merchants concern
  3. NO? The foreseeability of a rape at all time was not clear.  VS YES?, Totality of Harm, there was enough foreseeability at all times for the workers to be concerned enough to bring up worries at meetings and to call police/ have to bring dog to work for protection
  4. Balancing (1991-92) test did the cost of foot patrols VS patrol drivebys outway the foreseeability? (THIS TEST WILL GET THE QUESTION OF BALANCE TO A JURY)
    1. Where burden is high, you need a high degree of foreseeability (Almost always need prior events)
      1. I would say Plaza fails the balancing test, Plaza’s denial in know way will outweigh the testimony of workers who witnessed viloent robberies, assaults and pantsings.
      2. The Plaza was obviously aware enough to hire a driven patrol, the cost difference between Foot/Car patrols probobly doesnt justify the Plaza’s choice not to hire footpatrol when it was well aware OR SHOULD have been aware of the recent outbreak of violent crimes.

Courts began to expand liability.. Breakthrough landmark case was the Klien case

Yes landowners due owe because a landlord is better equipped to protect against these things. Becasue the cost of this security can be dispereed among the teneants
Holding Ann M
  • Defendants did not have notice of prior similar incidents, but they do have duty to discover prior events
  • Records show that they didnt have priors similars (doesnt have to be identical, just similar)
  • Council for Ann M conceded that they were not similar crimes
  • Ann M test for balancing is very difficult to satisfy
Duty to protect from crime
  • Threshhold question, if you had prior similar crimes then you have a duty to  protect safety
  • California says thats arbitrary, first time crime happens on premises—there may be lots of crime in surrounding area. and now your not liable just coz it never happened here before
  • CA says no no no the issue lies on foreseeability
  • Now it goes to the jury, a very expansive view, jury decides if it is foreseeable
  • CA Supreme Court pulls it back – Mere foreseeability not enough, there must be a very high degree of foreseeability
  • High degree of foreseeability is rarely met without prior similar crimes. Almost requires similar SAME crime
  • Court clarifies it just has to be similar crimes, but doesnt always even need a prior…but usulaly do

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