Duty of Care Owed by Possessor of Land

Duty of Care Owed by Possessor of Land

By Sally A. Roberts

            In general, there is an ascending degree of duty owed by the possessor of land to persons on the land based on their entrant status, i.e., trespasser, licensee or invitee.[1]  A possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe.[2]  In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover.[3]  The duty that a possessor of land owes to a licensee, however, does not ordinarily encompass the responsibility to keep the property in a reasonably safe condition, because the licensee must take the premises as he finds them.[4] 

            With respect to active operations that the occupier engages in, as opposed to passive conditions on the land, there generally is an obligation to exercise reasonable care for the protection of a licensee.  He must, for example, run his train, operate his machinery, or back his truck with due regard for the possibility that the licensee may be present.  The obligation is higher than that owed to a trespasser, because the possessor may be required to look out for licensees before their presence is discovered; but reasonable care will, of course, be affected by the probability that the licensee will come, whether he may be expected to follow a particular path, the time of day, and the nature of the danger.[5]  Additionally, as with trespassers, there is a duty to refrain from injuring a licensee intentionally, or by willful, wanton or reckless conduct.[6]  As a general rule, the possessor of real estate owes no duty to trespassers to keep the property in a reasonably safe condition for their use.[7]