Premises Liability - Location, Location, Location

Posted Thursday, September 22, 2016 by Ed Harper

There are 3 definitions that govern premises liability as well as real estate property values.

The State of Washington relies on an antiquated distinction articulated for numerous centuries, dating back to English Common Law – of liability and the duty of the landowner – which depends on the status of the one on the property. They are defined as Invitees, Licensees, and Trespassers.

The standard of care which a possessor of land owes to an entrant upon the land depends upon whether the entrant is a trespasser, licensee or business invitee. (Restatement (Second) of Torts Sections 328-344 (1965)) So to be clear, the three items are defined as follows:

Invitee is “one who is invited onto the premises, either by express or implied permission, to enter or remain on land for a purpose directly or indirectly connected with the business dealings (providing an economic benefit) of the possessor of the land.” (Restatement (Second) of Torts Sec. 332, and Thompson v. Katzer, 86 Wn.App. 280, 286, 936 P.2d 421)

A licensee is “a person who is privileged to enter or remain on land only by virtue of the possessor’s consent.” (Restatement (Second) of Sec. Torts 330, and Younce v. Ferguson, 106 Wn.2d 658 at 667, 724 P.2d 991 (1965))

And a trespasser is “a person who enters or remains upon land in possession of another without a privilege to do so created by the possessor’s consent or otherwise.” (Restatement (Second) of Sec. Torts 329)

Why should we care about the status of a person? For the reason that this determines the amount of care or responsibility we need to offer to those on our property. Section 343 of the Restatement Second of Torts, “establishes that a possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if:1. he knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and 2. should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and 3. fails to exercise reasonable care to protect them against the danger.

(Iwai v. State, 129 Wn2d 84, 93-94, 915 P.2d 1089 (1996))

To a licensee, a possessor of land is liable for injuries caused by a condition on the land only if:1. the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and 2. the possessor rails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and 3. the licensees do not know or have reason to know of the condition and the risk involved.

(Tincani v. Inland Zoological Society, 124 Wn. 2d 121, 133, 875 P.2d 621)

And to a trespasser, generally no duty of care with respect to safety of conditions of premises (exception for some known trespassers) but cannot intentionally ignore them and possessor must still refrain from intentionally or willfully injuring them.

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