I heard someone got sued because a burglar got hurt while breaking in. How is that fair?
We talked about premises liability and open & obvious dangers. Now, we’ll take a closer look at the duty landowners owe to different types of people. The general rule is that owners have a duty to keep their land safe from dangers or else face either negligence or a premises liability suit. That duty varies depending on who’s on the property.
First, let’s look at invitees. These are people who come onto the owner’s property with the owner’s knowledge and for reasons that benefit both parties. Examples of invitees are:
- Mail carriers; and
- Meter readers.
The highest level of duty an owner owes is to invitees. That duty demands that the owners “warn or make safe any condition posing an unreasonable risk of which the landowner has actual or constructive knowledge.” Note that the law only makes the landowner responsible for one of these options: make safe or warn.
This means that owners must make safe or warn about any dangerous conditions they know about or should know about if they had done a reasonable inspection of the property. A reasonable inspection for slip-and-fall risks at a store might be every few hours, but not every 10 minutes.
When it comes to such risks, things like broken jars of jam at a grocery store qualify. Texas courts don’t consider every possible dangerous risk to be unreasonable, though. Examples of conditions that courts don’t look at as unreasonable include:
- Dirt that hasn’t been moved;
- Mud on sidewalks;
- Icy bridges during the winter.
Now, let’s look at licensees. These are people who come onto the owners’ land with permission, but for their own benefit only. They include salespeople and party guests. This is the second-highest level of duty owed by owners. The owner has to make the unreasonably risky condition safe or warn about it only if the owner actually knows about it and the licensee does not know about it. As with invitees, the owner has the choice of whether to warn or make safe; both aren’t required.
The element of should have known about it (also called “constructive knowledge”) is not part of the owner’s duty to licensees. If the owner has been told about the condition, has seen it personally, has had others be harmed by it, has created it or has tried to repair it in the past, the owner has actual knowledge of the condition.
Note that there is no duty to make safe or warn if the licensee already knows about the risky condition.
The last type of person we’ll look at is the trespasser. These are the folks who come on the owner’s land without either a legal right (such as a meter reader) or permission (such as a party guest). These are also the folks to whom the owner owes the least amount of duty.
In fact, the only duty the owner owes to a trespasser is to not purposely injure the trespasser or injure them through gross negligence. This means the owner can’t beat up trespassers (on-purpose injury). It also means that the owner can’t do something with a high level of risk (and the owner’s conscious awareness) that is extremely likely to cause an injury, like putting out bear traps around the property line to catch trespassers. Gross negligence for injuries to a trespasser is very hard to prove.
Other than the two exceptions in the last paragraph, a landowner owes no duty to keep his property safe when it comes to trespassers. Our best advice here is: don’t trespass!