Owners and Occupiers of Land

Question 1

Outside the Premises (1-3)

Answer 1

1. There may be liability for the owner of a piece of property that abuts a road if he hasn’t seen the danger or he should have seen it, and has failed to, or he failed to undertake some investigation that a reasonable person would have done (Taylor v. Olsen)
   
   1. Part of this determination is assessing rural vs. urban areas, but this is not conclusory, as courts will look at a case-by-case basis
2. For situations that arise in the state of nature, most courts have held that there is no duty upon the landholder to protect persons outside the premises (FN: Roberts v. Harrison)
   
   1. An exception has evolved with regard to trees, and there is agreement that the landowner is liable for negligence if he knows, or should have known, that the tree is defective and fails to take reasonable precautions (FN: Turner v. Ridley)
3. Some states recognize a “self-help” rule, under which a landowner can resort to self-help and cut off tree branches intruding onto his property (FN: Melnick v. CSX Corp)
   
   1. However, you may actually create liability for yourself if you do this

Question 2

Outside the Premises (4-7)

Answer 2

1. A landowner may not use their land as to interfere with the rights of persons lawfully using the highways (Salevan v. Wilmington Park)
2. There is no longer a clear distinction between an artificial condition and a natural condition
3. A landowner is not generally going to owe a duty of care to protect passersby from the risk of criminal activity by a third person (FN: Hutchins v. 1001 Fourth Avenue)
4. A landholder owes a duty to a traveler who accidentally falls into excavations on land immediately adjoining the highway (FN: Downes v. Silva)
   
   1. This duty has extended to those who deviate intentionally from the highway (FN: Weidman v. Consolidated Gas)

Question 3

On the Premises

Answer 3

Many states, including CA, have rejected the differentiation between a trespasser, a licensee, and an invitee (Rowland v. Christian)

1. These courts simply assess whether the owner of the land owes a duty based upon the motive of the person who entered the land
2. These states use a case-by-case determination based on negligence principles

Question 4

Trespassers (RS §333)

Answer 4

1. The general rule is that no duty is owed to an unknown trespasser (Sheehan v. St. Paul)
2. Exceptions (when a duty will arise):
   
   1. Frequent trespassers on a limited area of land (FN: Imre v. Riegel Paper)
   2. Trespassers whose presence has been discovered (FN: Frederick v. Philadelphia Rapid Transit)
      
      1. When you should have known somebody was there, when their presence was reasonably anticipated, or where you have actually discovered the trespasser
   3. Tolerated intruders
      
      1. Defendant’s continued toleration of the trespasses amounts to permission to use the land, so that the plaintiff becomes a licensee
   4. Dangerous conditions obvious to an owner and trapped trespassers in peril (FN: Pridgen v. Boston Housing)
      
      1. If the danger was hidden and the owner knows about it, but that the trespasser has no reason to be aware of
3. In any of these exceptions, the duty is to exercise reasonable care in the trespasser’s activities for their protection

Question 5

Licensee (RS §341)

Answer 5

1. A licensee is a social guest
2. A social guest as a licensee generally must take the premises of his host as he finds them (Barmore v. Elmore)
3. The owner has a duty to warn the guest of any hidden dangers which are unknown to the guest, of which the owner has knowledge
4. Child licensees: there may be a duty to inform a child licensee about a risk when there would be no duty with regard to an adult (FN: Shannon v. Butler Homes)

Question 6

Invitee (RS §341A)

Answer 6

1. An invitee is someone who has gone onto the land in furtherance of the landowner’s business, such as a customer
   
   1. People who are there to do business with the owner
2. The owner has a duty to exercise reasonable care in keeping the premises reasonably safe for the use by the invitee
   
   1. The duty expands to warn AND make safe
3. If a person has no intention presently or in the future of becoming a customer, they are not an invitee (Campbell v. Weathers)
   
   1. However, it is not likely that many people will fall into this category because it would be very difficult to prove
   2. The mere fact that a customer does not buy something doesn’t make him a licensee
   3. The question is whether somebody in the future could become a customer – in this case, they would be an invitee

Question 7

Whether a person is a licensee or an invitee may change

Answer 7

1. Somebody can enter as an invitee, and later become a licensee or a trespasser
   
   1. If the invitee goes outside of the area of his invitation, he becomes a trespasser or a licensee, depending on whether he goes there with or without the consent of the possessor (Whelan v. Van Natta)
      
      1. As soon as he is no longer there for business, he becomes a licensee
2. This is one of the reasons courts have rejected these distinctions
3. Regardless of whether a person is an invitee or a licensee, the owner has a duty to act reasonably
4. When an obvious hazard is also a natural one such as snow, ice or rainwater, a number of jurisdictions hold that the invitor owes no duty to any invitee who slips or falls because of the hazard (FN: Sindle v. Humphrey)
   
   1. This is because the hazard is both natural and obvious

Question 8

Lessor and Lessee

general rule

Answer 8

The general rule is that a tenant becomes the legal equivalent of the owner of property when he leases from a landowner, and the broad duties to upkeep the property fall to the tenant

1. The duty extends not only to the tenant, but also to the members of his family (FN: Cesar v. Karutz)
2. Some courts (CA) find this general rule to be bad public policy because it is letting too many landlords off the hook (Pagelsdorf v. Safeco)
   
   1. Landlords should be held to a reasonable person negligence standard
   2. Otherwise, landlords would only ensure that they are covered in the situations with the exceptions

Question 9

Lessor and Lessee: 6 exceptions

Answer 9

1. Undisclosed dangerous conditions known to lessor and unknown to the lessee
   
   1. If the dangerous conditions are not open and obvious
2. Conditions dangerous to persons outside the premises
   
   1. It is unreasonable for a tenant to be responsible for something outside the property
3. Premises leased for admission of the public
   
   1. If you are leasing something for the purpose of opening it up to the public, certain duties will stay with the landlord
4. Parts of land retained in lessor’s control which lessee is entitled to use
   
   1. Common areas or hallways
   2. If you are leasing an office space, the landlord retains liability for common areas
5. Where lessor contracts to repair
   
   1. Must be some appropriate notification mechanism, otherwise the landlord would be held liable to repairs he did not know about
6. Negligence by lessor in making repairs
   
   1. If the landlord fixes something but did a bad job, they are liable

Question 10

Lessor Lessee: additional info

Answer 10

1. Efforts by lessors to immunize themselves against liability through exculpatory clauses in leases have been held to be void as against public policy (FN: Cappaert v. Junker)
2. The more foreseeable the crime, the more courts will find that a landlord has acted negligently if they failed to protect tenants from foreseeable criminal activity (Kline v. 1500 Massachusetts Ave)