Landowner Duty of Care


The standard of care that a landowner has a duty to provide an individual that enters onto his property depends on the status of their relationship. There are three tiers of relationships: trespassers, licensees and invitees. 


Black's Law Dictionary defines trespasser as "any unconsented to or unauthorized intrusion or invasion of private premises or land or another." Simply, it is the intentional entry upon the land of another. The intruder is liable for damages even if no physical or economic damages are done to the land. Usually, the least restrictive standard of care is required by landowners to protect trespassers: the landowner must only refrain from willful, wanton or reckless conduct that could harm (i.e. death, serious bodily injury) a trespasser. Katko v. Briney, 183 N.W.2d 657 (Ia. 1971) is a classic example of a landowner acting in a willful, wanton or reckless manner to protect his property from trespassers. Landowner Briney used a loaded "spring gun" to protect his abandoned house from being entered by trespasser Katko. The gun was rigged so that Katko was shot in the legs when he entered a room. The count held that while a landowner has no duty to make his property safe for trespassers, he cannot act in a willful, wanton or reckless manner (i.e. he may not set deadly traps against them).    


A discovered trespasser is someone who the landowner has knowledge of and tolerates coming onto his property. This relationship creates an elevated standard of care beyond that of a mere trespasser. The landowner now becomes liable to warn the discovered trespasser of dangers on the land that the discovered trespasser might not otherwise discover on his own. If a landowner knows someone cuts across his property regularly and (unexpectedly to the discovered trespasser) digs a deep ditch along the path the discovered trespasser regularly traverses, the landowner has a duty to warn about the danger created. 


A licensee is a person invited by the landowner onto the landowner's property for social purposes that are without an economic gain to the landowner- i.e. a social guest. The landowner has a higher standard of care to warn the licensee of dangers unknown to, and not likely to be discovered by, the licensee. The landowner does not need to go searching his property for dangers to warn his licensee. The landowner has no duty to repair the danger once the known danger is disclosed to the licensee. 


An invitee is a person invited onto the landowner's property for the economic benefit of the landowner. The landowner has the highest level of the standard of care to protect invitees. In addition to warning an invitee about known dangers on the property, the landowner must actively inspect the property for dangerous conditions and provide adequate warnings to the invitee about those dangers. Further, the landowner has a duty to the invitee to make feasible repairs to the dangerous condition.  


The attractive nuisance doctrine requires the landowner to exercise reasonable care to eliminate a danger on the landowner's property that would be attractive to a child, thereby causing the child to trespass on the property to further investigate the danger. The reasoning is three fold: trespass by a child is foreseeable; the child is unable to protect himself from the danger; and the burden of eliminating the danger is slight compared to the gravity of the potential harm the danger can cause the child. The standard of care is high because it is what a reasonable person thinks what would attract a curious child. Attractive nuisances typically include swimming pools (but not ponds or lakes) and farm and construction equipment.


The Recreation Use of Land and Water Act (Act) was enacted to provide immunity from personal injury lawsuits filed against a landowner by a person injured on the landowner's property. "The Act generally provides that an owner of land owes no duty to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure or activity on the premises." "The Act protects landowner form liability when their land is used for recreational purposes by the pubic without charge, whether or not the landowner has invited or permitted the public to enter his land." "The only time a landowner's liability is not limited under the Act is for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity or if the landowner charges for entry onto his land." 


Black's Law Dictionary defines negligence as "the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation." It is also referred to as "ordinary negligence." 


Strict liability is liability without fault. Some activities are so inherently dangerous that liability is imposed on the landowner regardless of any finding that the landowner took any measure of reasonable care. A landowner storing explosives or keeping wild (domesticated?) lions on his property are two classic examples of strict liability attaching to an act.  


A tort is a wrongful act under civil law that causes harm or injury to a party (the plaintiff) due to the failure to act in a reasonable manner by another (the defendant). The plaintiff "owns" the action because he or she decides to commence or terminate the action and can make decisions on how to proceed (settlement or litigation).


In an ordinary negligence tort cause of action (as opposed to strict liability, below), a four-prong test must be satisfied in order for the injured plaintiff to succeed on the action: there is a legal duty to provide a standard of care (duty); a breach of that duty (breach); that breach was the proximate cause of an injury (causation); resulting in an injury (damages). The damages are paid as compensatory damages first and possibly as punitive damages second.


To compare, a criminal act is a wrong against every man, woman and child of the Commonwealth. The Commonwealth decides what charges are filed against the defendant and how to proceed. The victim is a mere witness to the wrongful act and cannot decide how to (and, particularly, how not to) proceed against the defendant.


Some torts, such a breach of contract, can be corrected through legal damages (compensatory and/or punitive damages awarded to make the injured plaintiff "whole") and/or equitable remedies (specific performance, contract rescission or contract reformation). Compensatory damages are money damages paid to the plaintiff to compensate them for their injury. Punitive damages are money damages paid to the plaintiff solely to punish the defendant for the harm caused. The McDonald's hot coffee case is an example of punitive damages case: part of the plaintiff's award was from punitive damages because McDonalds had actual knowledge from prior litigation that their coffee was too hot (it was consistently served at almost the boiling point of water).