Consistent Trespasser upon a Limited Area:
Attractive Nuisance Doctrine:
The common law rule is that occupiers of land do not owe a general duty of care to those that enter their land. A land occupier is defined as the person in possession of the land, whether he is the owner, tenant or any other kind of possessor.
Land occupiers are given a special status that limits their liability for injuries that have been caused by conditions or activities on the land.
The law establishing the duty of care that a land occupier owes is divided into four categories:
- Duties owed to persons outside the land with respect to natural conditions (e.g., trees),
- Duties owed to persons outside the land with respect to artificial conditions (e.g., buildings),
- Duties owed to persons on the land with respect to natural conditions, and,
- Duties owed to persons on the land with respect to artificial conditions.
Let us now examine each category separately.
First, as far as duties owed to persons outside the land are concerned, the land occupier has no duty of care with respect to natural conditions such as trees or rocks or other naturally existing objects. This rule only applies in rural areas. Land occupiers in urban areas owe a duty of care to prevent trees growing on their land from creating unreasonable risks of harm to pedestrians on public streets.
Similarly, no duty is owed as to artificial conditions beyond what is owed for natural conditions outside the land. There are two exceptions to this rule. First, the owner of any artificial condition, such as a building or a fence, which either borders or sticks out onto an adjacent piece of land, has a duty to inspect and maintain those structures. Second, the owner of artificial conditions that border onto a public road has a duty to protect travelers on that road from harm.
Finally, a land occupier owes a duty to not undertake any activities that a reasonable person would foresee as potentially harmful to people or property outside of his land. Thus, a landowner may have a duty to refrain from such activities as setting off explosives or fire crackers on his land because it is foreseeable that they involve an unreasonable risk of harm to people or property outside of his land.
Now let's consider duties owed to persons coming onto the land.
Persons coming onto the land can fall into six different categories. They are:
- Ordinary Trespassers
- Consistent Trespassers
- Child Trespassers
- Public Entrants
In determining the land occupier’s duty to people coming onto the land three things must be considered: first, which of the six categories the people coming onto the land fall into, second, whether or not their presence on the land was known to the landowner and third, whether or not the person coming onto the land was injured by natural or artificial conditions existing on the land.
The first category of persons coming onto the land is the ordinary trespasser. An ordinary trespasser is defined as anyone coming onto the land without the express or implied permission of the land occupier or without a legal privilege to enter the land. There is no duty owed to a trespasser whose presence on the land is unknown to the land occupier. See Amblo’s Administratrix v. Vermont Asst., 144 A. 460 (Vt. 1929). Further, the land occupier is under no duty to discover the presence of the trespasser. This is true with respect to both natural and artificial conditions existing on the land as well as in regard to all activities occurring on the land.
However, if the land occupier knows or should reasonably realize that there is a trespasser on the land, he is under a duty to exercise care to either warn the trespasser of, or make safe, artificial conditions or activities that involve a risk of death or serious bodily harm. For example:
If the landowner has dug a pit on his land and the pit is concealed from view, or if the landowner is setting off explosives on his land, he is under no obligation to warn or protect an unknown trespasser from these dangers. However, if the land occupier knows or should reasonably realize that there is a trespasser on the land, he is required to either warn the trespasser of the danger or make those activities or hazards safe.
The second category of persons coming onto the land is the “consistent trespasser upon a limited area”. The consistent trespasser refers to a person habitually intruding upon the land or upon a certain area of the land. For example:
Someone who cuts across his neighbors backyard as a shortcut or children who routinely trespass on someone’s property in order to go swimming in a lake on the occupiers property are “consistent trespassers”.
As with the ordinary trespasser, there is no duty owed to a consistent trespasser whose presence on the land is unknown to the land occupier. That being said, in order for liability to attach, the plaintiff must show that the land occupier either knew or had reason to know of the consistent trespasser. The standard set for determining knowledge of the trespasser is low enough that even physical evidence on the land, like a beaten path or litter by the lake, will be considered enough to charge the land occupier with knowledge. See Louisville & Nashville Railway v. Spoonamore’s Admin., 129 S.W.2d 175 (Ky. 1939).
A consistent trespasser on a limited area is afforded a higher standard of care than the ordinary trespasser because the law assumes that, if the land occupier knows about the consistent trespassing and does nothing to stop it, the land occupier has given a kind of implied consent to the trespassing. To that end, the land occupier does owe a duty to discover whether or not consistent trespassers are on his land.
As with the ordinary trespasser, the land occupier’s duty to warn or make safe does not extend to natural conditions at all and only extends to artificial conditions or activities that involve a risk of death or serious bodily harm.
The land occupier may prevent trespassers from obtaining consistent trespasser status by demonstratively showing that he objects to the trespassing. Such demonstrative objections will prevent trespassers from obtaining consistent trespasser status and keep them as ordinary trespassers to whom the land occupier owes a lower standard of care. Things like “no trespassing” signs may be enough to keep people from obtaining consistent trespasser status.
The third category of persons coming onto the land is child trespassers. The standard of care owed to child trespassers is dictated by the “attractive nuisance doctrine”. This doctrine imposes a special duty of care on the land occupier with respect to conditions that involve a risk of harm to children who are unable to recognize the danger themselves. See McKiddy v. Des Moines Electric, 206 N.W. 815 (Iowa 1926).
In order to qualify as a child trespasser, a child must be so immature as to be unable to recognize the danger involved. Unlike consistent trespassers, a land occupier does not have a duty to discover trespassing children on his property. However, if a land occupier does discover child trespassers, or reasonably should have known that there are children trespassing on his land, he then owes a duty to warn or protect them from artificial conditions which carry a risk of death or serious bodily harm.
However, four elements must be in place in order for this duty of care to attach.
- The place where the condition is maintained must be one where children are known to trespass or are likely to trespass.
- The land occupier either knows or has reason to know that artificial conditions on the land exist and realizes that the artificial conditions present an unreasonable risk of death or serious bodily injury to the children.
- The danger that the artificial condition poses to the children outweighs the benefit of the artificial conditions to the land occupier and the cost or effort of eliminating that artificial condition.
- The condition is such that the children will not discover it or will not realize the danger inherent to it. The question of whether a child is capable of realizing the inherent danger is determined on a case-by-case basis. The younger the child the more likely it is that the condition will be considered an attractive nuisance. Based on the child’s understanding of danger as common as a swimming pool, jungle gym or swing set may very well be considered an attractive nuisance.
If all four of these elements are present, the land occupier will have a duty to either warn or protect the children from these artificial conditions.
Based on these guidelines, past verdicts have determined that cars, machinery and construction equipment all qualify as attractive nuisances. Please keep in mind that this duty is owed only with respect to dangerous artificial conditions. As with ordinary and consistent trespassers, the land occupier has no duty with respect to natural conditions or activities.
The fourth category of person coming onto the land is a “licensee”. A licensee is a person coming onto the land with the express or implied permission of the land occupier. However, the licensee enters the land for his own purposes and does not confer any particular benefit on the land occupier. Licensees typically include social guests, visiting relatives, business visitors and privileged entrants.
Implied permission is defined broadly so that people who would ordinarily be outright trespassers are considered licensees. For example, someone who comes on personal business or who comes to borrow something from the land occupier or who comes to solicit charity are all considered licensees. In each of these situations the law considers it as if these people had implied permission to enter the land. . See Indianapolis Street Railway v. Dawson, 68 N.E. 909 (Ind. 1903).
A land occupier owes a duty to warn licensees of, or make safe, natural or artificial conditions or activities involving any risk of harm known to the land occupier and not obvious to a reasonable person coming onto the land.
Please note that the land occupier is under no duty to warn or make safe any dangerous conditions or activities which he does not actually know about. He is also not under a duty to inspect the land to discover any unknown dangers. Posting warning signs is usually considered sufficient to fulfill the duty.
The fifth category of persons coming on to the land is the “invitee”. An invitee is a person who enters by either the express or implied invitation of the land occupier, but unlike the licensee, the invitee comes onto the land for a purpose that serves the interest of the land occupier.
There are two kinds of invitees: public invitees and business invitees. A public invitee is a person who is invited, as a member of the public, to enter or remain on the land for a purpose for which the land is held open to the public. An example would be someone entering a library for the purpose of reading a book.
A business invitee is one who enters land for the purpose of conducting business that is connected with the premises or where it can reasonably be said that the visit may confer some sort of commercial or monetary benefit to the landowner. Store customers or people entering premises that are held open for admission to the general public are considered business invitees. Employees are also considered business invitees. For that matter, so are police officers, sanitation workers and utility workers who enter the land to further the use for which the land occupier dedicated it.
Please note that an invitee remains an invitee so long as he remains on the part of the premises that he was invited to enter. If he goes outside the boundaries of his invitation, for example, a customer in a bar going behind the bar without permission, he may become a licensee or perhaps even an outright trespasser.
Of all six categories of persons who come onto the land, a land occupier owes the invitee the highest standard of care. The land occupier owes the invitee a duty to inspect and discover the presence of any dangerous natural or artificial conditions or activities and to either warn the invitee of the danger or make the condition safe.
See Fleming v. Arrington, 610 So.2d 1160 (Ala. 1992).
Further, a land occupier may be required to warn or protect an invitee from foreseeable tortuous or criminal acts of third persons.
The sixth category of persons who come onto the land is public entrants. A public entrant refers to any public employee entering the land under a privilege recognized by law regardless of any express or implied consent from the land occupier. In other words, a public entrant is a person who the land occupier has no right to keep off of his property.
Generally, the duty owed to a public entrant depends on why the public entrant is on the land. If the public entrant enters the land for some business purpose with the land occupier, the public entrant is owed the same duty as an invitee. However, if his entry is not for business purposes, but by some other privilege, most jurisdictions give the public entrant the status of a licensee.
Finally, please note that people who work for the occupier or act under the occupier’s orders, only owe the standard of care that the land occupier himself owes. In other words, employees of the land occupier or people acting under the land occupier’s orders have no greater a duty to people coming onto the land than the land owner himself has.