Black-letter propositions
- 01
The traditional categories are trespasser, who enters without privilege, licensee, such as a social guest privileged by the possessor's consent, and invitee, a business visitor invited for a purpose connected with business dealings; each category carries its own duty.
- 02
An invitee is owed ordinary care to avoid injury, which includes reasonable inspection and repair or warning; a licensee is generally owed a warning of known concealed dangers; a trespasser is owed only the duty to refrain from willful or wanton injury.
- 03
Rowland v. Christian rejected the rigid categories in California and asks whether the possessor acted as a reasonable person in managing the property in view of the probability of injury; the entrant's status is relevant but not determinative.
- 04
Under the attractive nuisance doctrine of Restatement (Second) of Torts section 339, a possessor is liable to trespassing children for an artificial condition if the possessor knows children are likely to trespass, knows the condition poses an unreasonable risk of death or serious harm, the children do not appreciate the risk, the burden of removing it is slight, and the possessor fails to use reasonable care.
- 05
The doctrine is applied narrowly and usually excludes common features such as walls, fences, and gates; swimming pools are often outside it unless there is a hidden or latent danger, because children generally understand the risk of drowning.
- 06
Recreational-use statutes protect landowners: California Civil Code section 846 says an owner owes no duty to keep premises safe for recreational entry or to warn of hazards, except for willful or malicious failure to guard or warn, entry for a consideration, or express invitation.
Use this attack sequence under time
Frame the issue
Identify who was hurt, why the person was on the land, and whether the jurisdiction keeps the entrant categories.
Resolve the next checkpoint
State the duty owed to that category, or ordinary reasonable care if the jurisdiction abandoned the categories.
Resolve the next checkpoint
If the plaintiff is a child trespasser, test each element of the attractive nuisance doctrine.
Finish the conclusion
Check for a recreational-use statute and for its exceptions before applying the common-law duty.
Common wrong turns
- A social guest is a licensee under the traditional categories, not an invitee, because the visit has no business purpose.
- Common features such as fences and pools rarely qualify as attractive nuisances, and older children appreciate obvious risks.
- A recreational-use statute does not protect an owner who charges for entry or who willfully fails to warn of a known hazard.
Worked example
A contractor leaves a running excavator unlocked at a site next to a playground, knowing that children often cut through the fence, and a six-year-old climbs into the cab and is injured.
The contractor knew that children were likely to trespass, and a running machine poses an unreasonable risk of serious harm that a six-year-old would not appreciate. Locking or removing the key costs almost nothing, so each element of the attractive nuisance doctrine is met.
Practice this topic
The entrant categories and Rowland
In Rowland v. Christian the California Supreme Court described the traditional scheme. A trespasser enters or remains without privilege. A licensee is a person like a social guest who is privileged to enter by the possessor's consent. An invitee is a business visitor invited or permitted to enter for a purpose connected with business dealings between the two. The court recorded that the invitor owes the invitee a duty of ordinary care, and that a trespasser and a social guest were traditionally owed only the duty of refraining from wanton or willful injury.
The court then declined to follow the rigid classifications. It held that the proper test under Civil Code section 1714 is whether the possessor acted as a reasonable person in managing the property in view of the probability of injury to others. The plaintiff's status may bear on that question, but it does not decide it. The plaintiff in the case was a social guest who was hurt when a cracked faucet handle broke in his hand, and the possessor had known of the crack for two weeks and had not warned him.
The attractive nuisance doctrine
Cornell's Wex entry says the doctrine covers a dangerous condition on a landowner's property that may particularly attract children. Wex quotes the five factors of the Restatement (Second) of Torts. The possessor must know or have reason to know that children are likely to trespass at the place, that the condition involves an unreasonable risk of death or serious bodily harm to them, and that they will not discover or realize the risk. The possessor's utility in keeping the condition and the burden of eliminating the danger must be slight compared with the risk, and the possessor must fail to use reasonable care.
Wex adds that the doctrine is narrowly applied and typically excludes common features like walls, fences, or gates. It reports that Indiana has held the doctrine does not apply to swimming pools unless they include some hidden or latent danger, and that a poorly maintained junkyard may qualify. It also notes that an adult hurt while trying to rescue a child from an attractive nuisance may invoke the doctrine.
Recreational-use statutes
California Civil Code section 846 says an owner of any interest in real property owes no duty of care to keep the premises safe for entry or use by others for a recreational purpose, or to warn of hazards, except as the section provides. The listed purposes include fishing, hunting, camping, hiking, sightseeing and picnicking. Giving permission does not make the entrant an invitee or licensee to whom a duty is owed.
The protection has limits. Subdivision (d) preserves liability for a willful or malicious failure to guard or warn against a dangerous condition, for injury where permission to enter was given for a consideration, and for persons who are expressly invited rather than merely permitted to enter. Subdivision (e) adds that the section itself creates no duty or ground of liability.
Frequently asked questions
What is the controlling rule for owners and occupiers of land?+
Name the plaintiff's entrant category, state the traditional duty owed, note whether the jurisdiction follows Rowland, and apply the attractive nuisance or recreational-use rule where the facts call for it.
Who is a licensee under the traditional categories?+
A person like a social guest who is not an invitee and who is privileged to enter by the possessor's consent, according to the California Supreme Court's description in Rowland v. Christian.
What did the Rowland decision change?+
It replaced the rigid entrant categories with a reasonable-care test for possessors of land, treating the entrant's status as relevant but not determinative.
What are the elements of attractive nuisance?+
Cornell's Wex entry lists five factors from the Restatement (Second) of Torts, beginning with the possessor's knowledge that children are likely to trespass.
Are swimming pools attractive nuisances?+
Often not. Wex reports that Indiana has held the doctrine does not apply to swimming pools unless they include some hidden or latent danger.
When does California's recreational-use statute not protect an owner?+
For willful or malicious failure to guard or warn, for entry given for a consideration, and for persons expressly invited, under Civil Code section 846(d).