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[i].

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 man 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[ii].  However, a landowner does not have any duty to keep the land in any particular state or condition to promote the safety of trespassers[iii].

The common law regarding premises liability requires various degrees of care depending upon a visitor’s status while on an owner’s or occupier’s land.  Common law premises liability rules may continue to provide guidance in determining whether a duty of reasonable care must be imposed in particular circumstances.  Therefore, the common law principles may still be used to assess whether to impose a landowner’s general tort obligation to avoid foreseeable harm to others.  Additionally, the common law classifications must be flexibly utilized to assess landowners’ liability for negligently inflicting harm to trespassing children[iv].  It was observed that a foreseeable trespasser is still a trespasser, and mere acquiescence to the trespassing does not alter the status of an entrant[v].

However, 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[vi].

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[vii].  With regard to the duty of care owed by an occupier of land to one upon his/her property, the courts adhere to the single standard of reasonable care under the circumstances whereby foreseeability will be a measure of liability[viii].

It is to be noted that the life or limb of a man does not become less worthy of protection by the law nor a loss less worthy of compensation under the law because he has come upon the land of another without permission or with permission but without a business purpose.  Reasonable people do not ordinarily vary their conduct depending upon such matters, and to focus upon the status of the injured party as a trespasser, licensee, or invitee in order to determine the question of whether the landowner has a duty of care, is contrary to the modern social mores and humanitarian values[ix].

[i] James v. Alberts, 464 Mich. 12 (Mich. 2001).

[ii] Peterson v. Balach, 294 Minn. 161 (Minn. 1972).

[iii] Gartley v. Chicago Housing Authority, 28 Ill. App. 3d 705 (Ill. App. Ct. 1st Dist. 1975).

[iv] Campbell v. Hastings, 348 N.J. Super. 264 (App.Div. 2002).

[v] Hansen v. Peco Energy Co., 1999 U.S. Dist. LEXIS 13388 (E.D. Pa. Aug. 25, 1999).

[vi] Fithian v. Reed, 204 F.3d 306 (1st Cir. Mass. 2000).

[vii] Butler v. Acme Markets, Inc., 89 N.J. 270 (N.J. 1982).

[viii] Carter v. Wal-Mart Stores, 2003 Neb. App. LEXIS 3 (Neb. Ct. App. Jan. 14, 2003).

[ix] Bartholomew v. Klingler Co., 53 Cal. App. 3d 975 (Cal. App. 2d Dist. 1975).