A child who enters the premises of another is 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[i]:
- 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. The duty of care offered to a child invitee must be the highest duty of care rather than a 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[ii]. However, some courts continue to use the status distinctions[iii].
In jurisdictions retaining the common law status distinctions, a complaint will fail to state a cause of action if the plaintiff fails to establish his/her status. Hence, the distinction between the various classifications is crucial in determining the duty of care owed by a property owner or occupier to a visitor[iv].
However, 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[v].
However, the courts have further observed that by applying the duty of reasonable care under all circumstances that is to both licensee and invitee 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[vi].
[i] Libby v. West Coast Rock Co., 308 So. 2d 602 (Fla. Dist. Ct. App. 2d Dist. 1975).
[ii] Jones v. Hansen, 254 Kan. 499 (Kan. 1994).
[iii] Little by Little v. Bell, 719 So. 2d 757 (Miss. 1998).
[iv] Alexander v. Med. Assocs. Clinic, 646 N.W.2d 74 (Iowa 2002).
[v] Jones v. Hansen, 254 Kan. 499 (Kan. 1994).
[vi] Sewell v. Wal-Mart Stores, Inc., 1992 U.S. Dist. LEXIS 12659 (D. Kan. Aug. 5, 1992).