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A landowner's guide to duty of care

In our last column, we reviewed the right of a person to use force to defend property. A related issue is the duty of care owed by a landowner to one who has entered their property. Most landowners are faced with at least one legal matter in their lifetime pertaining to this topic.

Most states have "recreational use statutes" that address this issue. These laws were passed in recognition of the potential liability of landowners for injuries to others while others are on the landowner's property. This movement goes back to the mid-1960s, when the Council of State Governments suggested model laws limiting landowner liability for injuries occurring on the landowner's property. The rationale behind limiting liability was to encourage landowners to make recreational opportunities available to the general public.

Before recreational use statutes were in fashion, landowner liability for injuries suffered by others was dependent upon the status of the person who was injured. The basic premise, which still is "good law" today, is that landowners owe a duty of care to certain entrants to land. Of the entrants to land, there is a hierarchy of the "amount of care" owed to that entrant to the land.

A "trespasser" is owed the lowest duty of care. A person on the land without permission is owed no duty of care, and enters the land at their own risk. But landowners are not permitted to intentionally — or even willfully — injure a trespasser. In fact, once a trespasser is known to a landowner, the trespasser actually should be warned of any dangers, including those that aren't obvious — such as a well or a bear trap.

Now, there actually is a difference in the eyes of the law between adult trespassers and children who are trespassers. The adult trespasser is owed the lowest duty of care, and landowners actually owe a little bit more of a duty of care to children who are trespassers. You may be familiar with the term "attractive nuisance." This might be a body of water or a specific landmark that is on private land, but which might be something that children would find fascinating. Landowners should carefully post signage around such attractive nuisances to warn child trespassers of the danger inherent in being on the land without permission.

After trespassers, there is the concept of a "licensee." A licensee is someone on the land with permission of the landowner, but who does not bestow any benefit upon the landowner. For example, if someone is hunting on your land, and you haven't charged them any money to hunt, then that person is likely a licensee.

Licensees are owed a duty of care slightly higher than that owed to a trespasser. The landowner needn't prepare the land for the licensee, nor does the landowner need to make the land safe for them. However, the landowner does need to take due care to avoid injury to the licensee. And they are entitled to be warned of hidden dangers and hazards upon the property, or at least those known by the landowner.

The highest duty of care owed by a landowner is to "invitees." An invitee is on the land for mutual advantage of both the landowner and the entrant onto the land. Think of these as "business guests," such as the milkman, an employee, a custom worker or even a veterinarian or mechanic. In general, an invitee is owed a duty of care by the landowner to make and keep the property safe and to warn of all known dangers.

Seek legal counsel if you have questions about the duty of care owed to someone on your land. It's an area of law where preventative medicine is the best treatment.