As we discussed in Part I of this series, when a plaintiff is injured due to a condition on the defendant’s land, he or she may recover only under a premises liability claim.  In analyzing this type of claim, the first question to ask is what duty was owed by the landowner.  The answer to this question generally depends on which of the three the legal categories the plaintiff fits: invitee, licensee, or trespasser.

Invitee

A person who enters the land with the owner’s knowledge and for the mutual benefit of both parties is an invitee.  Examples include business patrons, owner’s employees, mailmen, and meter readers.

Landowners owe the greatest duty to an invitee.  A landowner must warn or make safe any condition posing an unreasonable risk of which the landowner has actual or constructive knowledge.  Let’s look at each of these elements individually.

Actual or Constructive Knowledge:  A landowner is responsible not only for conditions of which he or she has actual knowledge, but also those of which he or she is deemed to have constructive knowledge.  This means that the landowner could have discovered the condition with a reasonable inspection, even if the landowner failed to make an inspection.  Let’s take a classic slip and fall case in a grocery store.  If a plaintiff slipped on a grape that had been on the floor for only 5 minutes, the grocery store likely would not be found to have constructive knowledge, because it would not be reasonable to expect them to inspect the entire store every 5 minutes.  If, on the other hand, a customer slipped on a grape that had been on the floor for 5 hours, constructive knowledge would be more likely to exist.

Unreasonable Risk:  Not all conditions create an unreasonable risk of harm.  Liability is imposed only where a plaintiff can show that this unreasonable risk exists.  There are certain conditions that Texas courts have found not to be unreasonable as a matter of law, including icy bridges during cold weather, mud accumulation on a concrete slab, naturally occurring ice accumulating without assistance or involvement of unnatural contact, and dirt in its natural state.

Duty to Warn or Make Safe:  Where a landowner has actual or constructive knowledge of a condition creating an unreasonable risk, he or she has a duty to use reasonable care to either warn the invitee or to make the condition safe.  These are alternatives, of which a landowner need only satisfy one.

Licensee

A person who enters the land with permission for his or her own benefit is a licensee.  The most common example is a social guest or a salesman.

Landowners must warn or make safe any condition posing an unreasonable risk of harm that is actually known to the landowner and is not similarly known by the plaintiff.

Actual Knowledge:  Unlike an invitee, a licensee cannot rely on constructive knowledge to prove his or her case.  Instead, a plaintiff must show that the landowner had actual knowledge of the unreasonably dangerous condition.  Actual knowledge can be shown in a number of ways, including evidence that the landowner has seen or been told of the condition, proof of prior incidents, proof that the landowner created the condition, and the fact that the landowner attempted to remedy or prevent the condition.

Plaintiff Did Not Have Similar Knowledge:  A landowner does not have to warn or make safe a dangerous condition that is actually known to the licensee.  Oftentimes, similar knowledge of the licensee is proven where the dangerous condition was visible to the licensee.

Duty to Warn or Make Safe:  This requirement is identical to that element of an invitee–the landowner may either warn the licensee or make the condition safe.

Trespasser

A person who enters the property of another without permission or legal right to do so falls under the category of trespasser.  The landowner owes the lowest duty of care to a trespasser.  A landowner’s only obligation to a trespasser is not to intentionally injure the trespasser or to injure the trespasser by gross negligence.  Gross negligence involves an act or omission involving an extreme degree of risk, of which the defendant had actual awareness, but proceeded in conscious indifference to the rights, safety, and welfare of others.  This is a very high standard that is difficult for a plaintiff to prove.

Unlike the other categories discussed above, the landowner has no duty to maintain his land in a safe condition for strangers entering without permission.  Thus, so long as a landowner does not intentionally injure a plaintiff or act with gross negligence, he or she will not be liable for injuries to a trespasser under a premises liability claim.

Attractive Nuisance

There is an exception to the general rule regarding trespassers that applies to children.  The attractive nuisance doctrine comes into play when the trespasser is a young child and the following elements are met.

(1) Defendant knew or should have known there was an artificial condition on the land and children were likely to trespass.  Note here that the doctrine applies only to artificial conditions, not to natural ones.  Artificial conditions to which the doctrine has been applied include open caliche pits, billboards, large irrigation pipes, and cattle dipping vats.

(2) Defendant knew or should have known the artificial condition posed an unreasonable risk of injury or death to children.

(3) Plaintiff did not realize the risk involved with the condition because of his or her age.  This is a case-by-case determination that takes into account the child’s mental capacity, whether the child is unusually bright of slow, and age.  Although there is no set age, the majority of cases applying the doctrine involve children 12 years of age of younger.

(4)  The utility of the defendant maintaining the condition and burden of eliminating the danger were slight compared to the risk to the children.  This element is a fact-specific balancing test.

(5) The defendant’s failure to exercise reasonable care to eliminate the danger or otherwise protect the plaintiff caused the plaintiff’s injury.

What Should Landowners Do?

As you can see, the duty owed to a plaintiff suing based on a premises liability claim is very fact specific and complex to analyze.  The best advice to landowners is to take care to inspect their property for any unreasonable risks of danger and either remedy or warn everyone of such dangers.  Although this level of care is not required for all of the categories, it is better safe than sorry.  Finally, if a landowner thinks there is a chance he or she could fall under the attractive nuisance doctrine, the landowner should seriously consider taking immediate steps to prevent or eliminate the unreasonable risk of harm.