A child is a licensee when s/he enters into the property of another with the owner’s permission, for his/her own convenience, pleasure, or benefit[i]. Hence, in order to be a licensee a child must have entered a premise by virtue of either the express or implied consent of the possessor of premises, or by operation of law[ii].
Likewise, a child who enters an owner’s property with consent or as a guest, but with no business purpose, is also a licensee[iii]. Even a child entering a premise with his/her adult relative to work is a licensee. S/he cannot be treated as an invitee because the child has entered into the property of another for his/her own convenience, pleasure, or benefit with an owner’s permission.
However, a child who enters into the office building of his/her father along with his/her mother is an invitee if there is no evidence to show that their entrance was for the mutual benefit of both the child and owner. Hence in cases where an owner was to receive a potential pecuniary profit, such child will be a licensee rather than an invitee[iv].
Generally, an owner or occupier of premises is not obliged to inspect or to make his/her premises safe for licensees. But an owner or occupant who discovers a danger owes the child a duty not to negligently injure him/her[v]. Therefore, the duty owed by a land owner to a licensee includes:
- duty to refrain from injuring a licensee by willful or wanton negligence;
- duty to warn a licensee of a hidden danger or peril known to an owner or occupant, but unknown or unobservable by a licensee.
However, in the following cases a land owner need not perform his/her duty to warn child licensees[vi]:
- where a landowner has not created any new hidden danger, pitfall, or trap; or
- where a landowner has reason to believe that the defective condition would be discovered by the child; or
- where the danger was open to the ordinary observation of the child; or
- where the defective condition was apparent and the child had knowledge of such condition; or
- where a landowner was unaware of the danger; or
- where a landowner had no knowledge or had no reason to know about the child’s presence; or
- where a parent had knowledge about his/her child’s activity before the accident and did nothing to prevent the same.
Once the presence of a child licensee is known, an owner or occupant must take the same acts of caution as s/he would take with respect to a child invitee[vii]. Although an owner or occupant possesses the same duty to a child licensee and child trespasser, an owner must exercise a higher a degree of care to a child licensee when compared to a child trespasser[viii]. The reason being that a licensee’s presence as a result of the license is at all times probable, while a trespasser’s presence cannot be anticipated every time.
However, some courts have raised licensees to a common class with invitees. Accordingly, a landowner must use reasonable or ordinary care to prevent injury to child licensees, just as required in the case of child invitees. Hence, if a land owner maintains dangerous conditions on premises to which s/he permits child licensees to enter, an owner must use ordinary care to guard them against a danger which is undiscoverable for a child because of his/her age and ignorance[ix].
In order to recover damages from a landowner, for injury caused to a child licensee, the plaintiff must show[x]:
- that there was a defective condition which posed an unreasonable risk on the defendant’s premises;
- that the defective condition which caused the injury was known to the defendant;
- that the defendant had reason to believe that a licensee would not discover the defective condition or realize the risk,
- that the defendant failed to exercise reasonable care by warning a licensee or by correcting the defective condition, and
- that the defective condition caused the licensee’s injuries.
[i] Dunn v. Bomberger, 213 N.C. 172 (N.C. 1938).
[ii] Jones v. Hansen, 254 Kan. 499 (Kan. 1994).
[iii] Foster v. Alabama Power Co., 395 So. 2d 27 (Ala. 1981).
[iv] Leffler v. Sharp, 891 So. 2d 152 (Miss. 2004).
[v] Johnson v. Harris, 585 So. 2d 1349 (Ala. 1991).
[vi] Driskill v. Alabama Power Co., 374 So. 2d 265 (Ala. 1979).
[vii] Blair v. Manderson, 126 Ga. App. 235 (Ga. Ct. App. 1972).
[viii] Cook v. Southern R. Co., 53 Ga. App. 723 (Ga. Ct. App. 1936).
[ix] Moore v. North Chicago Refiners & Smelters, Inc., 346 Ill. App. 530 (Ill. App. Ct. 1952).
[x] Nelsen v. Nelsen, 174 Ore. App. 252 (Or. Ct. App. 2001).