University of Vermont AAHS

Land Occupier's Liability for Injuries on the Premises

by
Robert O. Dawson
Professor of Law,
University of Texas School of Law

If you are in the horse business, you are also a land occupier. There's good news and bad news regarding the legal liability of a land occupier--who can be a renter as well as an owner--for injuries that occur on the premises.

The good news is that the law gives extra protection from liability regarding injuries to trespassers or social guests. The bad news is that a land occupier has a special duty to make the property safe for business invitees.

Here, we are talking about injuries from various conditions on the land, such as buildings, fences, guy wires to utility poles, and swimming pools. Traditionally, the law has limited these special land occupier rules only to "artificial conditions" to the exclusion of natural ones. Thus, a creek created by nature would not be a condition, but a pond made by man would be. The reason for this distinction is that it would be too great a burden on the land occupier to require neutralizing the dangers posed by many natural conditions, such as rivers, cliffs, and caves, to justify imposing legal liability for injuries resulting from them. Further, if the condition is built by man, man can build it safe.

The law separates people who enter onto the land of another into three broad categories: trespassers, social guests and business invitees.

Trespassers.

A trespasser is a person who enters the land of another without the other's consent and without any other authority. The general rule, subject to exceptions, is that a land occupier has no duty to make his premises safe for a trespasser. The lack of duty arises in part because the trespasser is on the premises unlawfully and therefore is in no position to complain that the land occupier did not make this property safe for him. Also, trespassers are often on premises without the knowledge of the land occupier (or they would be expelled). The land occupier is not required to anticipate that trespassing will occur and take steps to avoid injuries to trespassers.

One exception is that if the land occupier knows of the presence of a trespasser and of a dangerous artificial condition on his land, he is under a duty to take steps to attempt to warn the trespasser of the danger. He must also refrain from intentionally injuring the discovered trespasser, such as by setting a trap for him.

A second exception deals with young children--generally under the age of about 12. It's called the "attractive nuisance" doctrine. If the land occupier knows that children are likely to trespass on his land (perhaps because they have in the past or perhaps because of proximity to children's homes) and knows of an artificial condition on the land that would be particularly dangerous to children because of their inability to appreciate the risks posed, the land occupier is under a duty to neutralize the danger unless doing so would impose an unreasonable burden.

For example, a land occupier may be required to put a fence around a swimming pool to protect child trespassers from possible injury, but would not be required to put a secure roof on it, because that would be unreasonably burdensome. Also, a land occupier is not required to child-proof the perimeter of his property by special fencing in order to prevent trespassing by children.

Most states say that a horse or other domestic animal is not an artificial condition for which there can be liability under land occupier rules. So, if a child trespasses on property and is injured by a horse, the land occupier would not be liable. However, if the cause of an injury is, for example, an unreasonably low roof on a shed that would pose a danger to equestrians, that could be an artificial condition that could be the basis of liability should the child trespasser mount a horse and collide with the shed.

A third exception exists if a land occupier knows that people frequently trespass in a limited area, such as a corner of the property used as a shortcut. Under those circumstances, the land occupier may have a duty to neutralize artificial conditions that pose a hazard to these trespassers.

A number of states have abolished the rule of no duty toward a trespasser and replaced it with a rule of liability for foreseeable injuries. If a reasonable person in the land occupier's position would have foreseen that trespassing would occur and that an artificial condition on the land would pose an unreasonable risk to trespassers, he may be liable for any injury that occurs.

Social Guests.

A social guest, called a "licensee," is a person who enters property with the permission of the land occupier. Normally, a social guest does not pay for the privilege of being on the land. A land occupier has no duty to make his premises safe for a social guest.

However, under general foreseeability principles if the land occupier can foresee an unreasonable risk to a social guest from an artificial condition, he has a duty to protect the guest from that risk by warning the guest or neutralizing the condition. The land occupier does not, however, have a duty to inspect the premises to discover conditions that might pose a danger to a social guest.

The major distinction between a social guest and a trespasser is that the land occupier, because he has given consent, has knowledge that the social guest is on his premises or at least that persons of that general category have permission to be on the land and therefore are more likely to be on the property than a trespasser.

Virtually all states have enacted recreational use statutes. These statutes are intended to encourage land occupiers to make their land available to others for recreational use, such as horse riding, without charge. In order to encourage such generosity, the statutes provide that the land occupier is not liable for injuries to the recreational users except for intentional, wanton or willful conduct.

Recreational use statutes for all of the states can be viewed by going from the Main Menu to the Recreational Use Statute Menu and thence to you state's statute..

Business Invitees.

A business invitee is on the premises with the permission of the land occupier and the occupier receives some benefit from that presence. The clearest example is a camper, riding student, or horse boarder who pays for the privilege of using the land.

The land occupier has a duty to inspect his premises to discover artificial conditions that pose a risk to business invitees. Once discovered, the land occupier has a duty to warn the invitee of the danger or to neutralize it.

Summary.

There is very little difference between the law's treatment of a trespasser and a social guest. There is more duty toward the guest, primarily because the land occupier knows or is more likely to know of the presence of a guest on the property than of a trespasser. In general, the full extent of the duty is to warn the known trespasser or guest of dangerous artificial conditions, but there is no duty to inspect the premises to discover the existence of such conditions.

For the business invitee, however, the land occupier has the affirmative duty to inspect the premises to determine the existence of dangerous artificial conditions and to neutralize them or warn the invitee of them. This is a major difference. Under these rules, the land occupier maybe held liable for an injury from a dangerous artificial condition that the land occupier did not know existed if a reasonable inspection would have uncovered the condition.

If you are a land occupier who has business invitees on your property, you should systematically inspect your property for the specific purpose of uncovering artificial conditions that might pose a danger to your invitees. Once discovered, you are under a duty to warn business invitees about the conditions, such as by posting signs, or, better, by neutralizing them if that can be done with reasonable cost.


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