Negligence - Claims against owners and occupiers of land

Learning Outcomes

This article explains negligence claims against owners and occupiers of land, including:

• How to classify entrants as trespassers, licensees, invitees, and public/business invitees, and why accurate status identification is often outcome-determinative on MBE questions.
• The traditional duties owed for conditions versus activities to each entrant category, including inspection obligations, warning duties, and when no duty to inspect applies.
• How attractive nuisance liability for child trespassers operates, with emphasis on each required element, common exam fact triggers, and limits of the doctrine.
• Key distinctions between artificial and natural conditions and how they affect duties to entrants and to people injured off the premises in rural and urban settings.
• How open and obvious dangers influence the duty to warn or make safe, and when foreseeability overrides obviousness, especially in commercial-premises fact patterns.
• The structure and exam impact of recreational use statutes and flagrant-trespasser provisions, focusing on how they narrow duties and preserve willful-or-wanton liability.
• The modern unitary reasonable-care approach to lawful entrants, how it differs from the traditional tripartite scheme, and how the MBE typically signals its use.
• Strategic steps for approaching MBE negligence questions in this area, including spotting entrant status, identifying condition-versus-activity issues, and matching the correct duty and defense.

MBE Syllabus

For the MBE, you are required to understand negligence rules governing claims against owners and occupiers of land, with a focus on the following syllabus points:

• Classification of entrants (trespassers, licensees, invitees) and how that classification affects the duty of care.
• Traditional tripartite structure versus modern reasonable-care-to-lawful-entrants approach.
• Duties regarding artificial versus natural conditions and active operations on the land.
• Attractive nuisance doctrine and other rules protecting child trespassers.
• Duties to persons off the premises (e.g., falling trees, structures near the boundary).
• Doctrines limiting liability, including open and obvious dangers and recreational use statutes.
• Special wrinkles: discovered and anticipated trespassers, “flagrant” trespassers, and social guests versus business visitors.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following best describes the duty owed by a landowner to a discovered trespasser?
   1. No duty at all.
   2. Duty to warn of known, concealed, highly dangerous artificial conditions.
   3. Duty to inspect for unknown dangers.
   4. Duty to make all conditions safe.
2. Under the traditional approach, a social guest is classified as:
   1. An invitee.
   2. A licensee.
   3. A trespasser.
   4. A business visitor.
3. What is the "attractive nuisance" doctrine most likely to apply to?
   1. Adult trespassers only.
   2. Child trespassers and artificial conditions.
   3. Licensees and natural conditions.
   4. Invitees and open dangers.

Introduction

Negligence claims against owners and occupiers of land appear regularly on the MBE. Many questions turn on subtle differences in the duty of care owed to entrants based on their status and on whether the harm arises from a static condition of the land or from the defendant’s active conduct.

Key Term: Possessor of Land
The person who occupies the land or controls it (e.g., a tenant, store operator, or owner in possession). On the MBE, duties are usually framed in terms of possessors, not just titled owners.

The traditional common-law approach divides entrants into three categories—trespassers, licensees, and invitees—with different duties owed to each. Roughly half of U.S. jurisdictions still follow this structure, and the MBE heavily tests it, even though many states have moved to a more unified “reasonable care” standard for lawful entrants.

Classification of Entrants

Key Term: Trespasser
A person who enters or remains on land without the possessor’s consent or other legal right.

Key Term: Licensee
A person who enters land with permission but not for a purpose that confers a material benefit on the possessor (typical example: a social guest).

Key Term: Invitee
A person invited onto land either for a purpose connected with the possessor’s business or as a member of the public when the land is held open to the public.

Key Term: Public Invitee
A member of the public invited to enter land held open to the public (e.g., a visitor to a public museum).

Key Term: Business Invitee
A person who enters land for a purpose connected with the possessor’s business (e.g., a customer in a store).

Accurately classifying the entrant is step one. On the MBE:

• Social guests are licensees, not invitees.
• Customers and clients are invitees.
• Uninvited persons are generally trespassers.

Conditions versus Activities

The duty analysis is slightly different for static conditions (e.g., a hidden hole) and active conduct (e.g., negligently driving a forklift).

Key Term: Condition vs Activity
A condition is a state of the premises (e.g., a loose step). An activity is the possessor’s ongoing conduct on the land (e.g., operating machinery).

Traditional rules mainly govern duties regarding conditions; a separate, usually broader, duty applies to activities (reasonable care towards those foreseeably at risk).

Duty Owed to Trespassers

General Baseline

Even in traditional jurisdictions, possessors must not intentionally, wantonly, or recklessly injure trespassers. Setting traps or spring-guns to deter trespassers is almost always negligent (and often reckless).

Key Term: Flagrant Trespasser
A particularly blameworthy trespasser, such as a criminal intruder. Some statutes limit the possessor’s duty even further for such entrants, often to avoiding willful or wanton harm.

Undiscovered Trespassers

If the possessor has no reason to know anyone is trespassing in a particular area:

• No duty to inspect for dangers.
• No duty to warn or make the land safe.
• Duty only to avoid intentional or reckless injury.

Discovered and Anticipated Trespassers

Key Term: Discovered Trespasser
A trespasser whose presence is actually known to the possessor.

Key Term: Anticipated Trespasser
A trespasser the possessor should reasonably expect (e.g., people regularly cutting across a field at night).

For discovered or anticipated trespassers, the traditional rule is:

• Duty to exercise reasonable care in active operations once their presence is known.
• Duty to warn of or make safe known, concealed, and highly dangerous artificial conditions that pose a risk of death or serious bodily harm and that the trespasser is unlikely to discover.

Key Term: Artificial Condition
A man-made condition on the land (e.g., a pit dug by the owner, machinery, structures, wires).

Key Term: Natural Condition
A condition that arises from nature, not human activity (e.g., naturally occurring trees, rocks, natural bodies of water).

No duty to inspect for unknown dangers for trespassers, nor to warn of obvious conditions, and usually no duty regarding natural conditions (with some important exceptions off the premises, discussed below).

Child Trespassers and Attractive Nuisance

The law is more protective of children, recognizing they may not appreciate risks posed by artificial conditions.

Key Term: Attractive Nuisance Doctrine
A doctrine imposing liability on land possessors for harm to child trespassers caused by dangerous artificial conditions likely to attract children, when several stringent requirements are met.

The possessor may be liable when:

1. An artificial condition exists in a place where the possessor knows or should know children are likely to trespass.
2. The condition poses an unreasonable risk of death or serious bodily harm.
3. Because of their age or immaturity, the children do not discover or appreciate the danger.
4. The burden of eliminating the danger or guarding against it is slight compared to the risk to children.
5. The possessor fails to exercise reasonable care to eliminate the danger or protect children.

Although the label suggests the condition must “attract” children, many jurisdictions apply the doctrine even if the condition did not literally lure the child onto the land, as long as the other elements are satisfied.

Exam Warning

On the MBE, adult trespassers cannot invoke attractive nuisance. Check the age and sophistication of the entrant carefully.

Duty Owed to Licensees

Licensees include social guests and others who enter with permission for their own purposes (e.g., someone who comes to borrow tools, door-to-door canvassers with permission).

Traditional duties regarding conditions:

• Duty to warn of or make safe dangerous conditions:
  • that the possessor knows of, and
  • that are not obvious, and
  • that the licensee is unlikely to discover on their own.
• No duty to inspect for unknown conditions.

For activities, the possessor must use reasonable care in conducting operations to avoid injuring licensees once their presence is known or should be known.

Duty Owed to Invitees

Invitees are owed the highest level of protection.

Traditional duties regarding conditions:

• Duty of reasonable care to:
  • Inspect for dangers.
  • Discover conditions the possessor knows or should know about.
  • Warn of or make safe dangerous conditions that are known or should be known, and that the invitee is unlikely to discover.

This duty applies to both natural and artificial conditions that present an unreasonable risk.

For activities, the possessor must exercise reasonable care to avoid injuring invitees.

Exam Warning

The key distinction between invitees and licensees for MBE purposes is inspection. Invitees are owed a duty of reasonable inspection and correction; licensees are not.

Revision Tip

If the fact pattern is ambiguous, look for clues:

• Social guest at a home → licensee.
• Shopper, client, or patient → invitee.
• Person wandering onto land without permission → trespasser.

Artificial vs. Natural Conditions and Off-Premises Harm

The possessor’s duty may differ when the claimant is injured off the premises (e.g., a passerby on a public sidewalk).

• Artificial conditions near the boundary: duty of reasonable care to prevent them from unreasonably endangering persons off the premises (e.g., preventing debris from falling onto the sidewalk).
• Natural conditions:
  • In rural areas, traditionally little or no duty regarding natural conditions affecting those off the premises.
  • In urban areas, many courts impose a duty of reasonable care to inspect and maintain trees so they do not pose an unreasonable risk to adjacent properties or passersby.

Open and Obvious Dangers

Key Term: Open and Obvious Danger
A condition whose danger would be apparent to a reasonable person in the visitor’s position.

As a general rule:

• No duty to warn of open and obvious dangers, even to invitees and licensees, if the possessor can reasonably rely on the entrant to observe and avoid the danger.

However, the possessor may still be liable if harm is foreseeable despite the obviousness—for example, where:

• The possessor should anticipate that the entrant will be distracted.
• The possessor should foresee that the entrant will proceed despite the risk (e.g., because there is no reasonable alternative route).

Recreational Use Statutes

Key Term: Recreational Use Statute
A statute that limits a land possessor’s duty to entrants who use the land for recreational purposes without paying a fee.

Many jurisdictions have statutes that:

• Greatly reduce or eliminate the possessor’s duty to inspect or make safe land opened to the public for recreational use without charge (e.g., hiking, fishing).
• Preserve liability for willful, wanton, or malicious failure to guard or warn against a dangerous condition.

On the MBE, if you see a large tract of undeveloped land open for free recreation, check for facts suggesting such a statute and look for language limiting liability except for willful or reckless conduct.

Modern Unitary Approach

Under the modern trend (adopted in roughly half the states):

• The licensee/invitee distinction is abolished.
• The possessor owes a duty of reasonable care under the circumstances to all lawful entrants.
• The entrant’s status remains a factor, but not dispositive.

Trespasser rules (especially for undiscovered trespassers) are usually preserved, though some statutes further limit duties to flagrant trespassers.

On the MBE, assume the traditional categories apply unless the question explicitly describes a modern statute or court decision.

Worked Example 1.1

A homeowner knows that a deep, uncovered pit exists in the backyard. A child from the neighborhood enters the yard without permission and falls into the pit, suffering serious injury. The pit is not visible from the street, and the homeowner is aware that children often play nearby.

Answer:
The homeowner is likely liable under the attractive nuisance doctrine. The pit is an artificial condition, the homeowner knows children are likely to trespass, the condition poses a serious risk, children may not appreciate the danger, and the burden of covering or fencing the pit is slight compared to the risk. Failing to take reasonable precautions breaches the duty owed to child trespassers.

Worked Example 1.2

A shop owner discovers a trespasser asleep in the storeroom. The shop owner does not warn the trespasser about a loose, electrified wire on the floor, which is not visible. The trespasser is electrocuted.

Answer:
The shop owner is likely liable. Once the trespasser is discovered, the owner must exercise reasonable care in active operations and must warn of known, concealed, highly dangerous artificial conditions that pose a risk of serious harm and are unlikely to be discovered by the trespasser. The hidden live wire qualifies; failing to warn breaches that duty.

Worked Example 1.3

A customer at a supermarket slips on a large, bright-yellow pool of spilled detergent in the main aisle. The spill occurred five minutes earlier; no warning signs have been placed. The customer sues the store.

Answer:
The customer is an invitee. The store owes a duty to reasonably inspect and make safe conditions it knows or should know about. A jury could find that a reasonable store should have detected and begun addressing a conspicuous spill in five minutes. The danger may be “obvious,” but because invitees must use the aisle and may be distracted by merchandise, harm may still be foreseeable despite obviousness. Liability is possible.

Worked Example 1.4

In a city neighborhood, a landowner has a large, old tree on her property near the sidewalk. She never inspects it. A diseased limb falls and injures a pedestrian.

Answer:
Although the tree is a natural condition, many courts—especially in urban settings—impose a duty of reasonable care to inspect and maintain trees adjacent to public ways. The landowner’s failure to inspect could be a breach of duty to persons off the premises, making her liable if a reasonable inspection would have revealed the danger.

Key Point Checklist

This article has covered the following key knowledge points:

• Entrant classification (trespasser, licensee, invitee) is the starting point for determining a possessor’s duty under the traditional approach.
• Undiscovered trespassers are owed virtually no duty beyond avoiding intentional or reckless harm; no duty to inspect applies.
• Discovered or anticipated trespassers must be protected from known, concealed, highly dangerous artificial conditions and from unreasonably dangerous active operations.
• The attractive nuisance doctrine imposes a duty toward child trespassers when a dangerous artificial condition and several stringent elements are present.
• Licensees must be warned of known, non-obvious dangers the possessor knows of; there is no duty to inspect for unknown dangers, but there is a duty of reasonable care in activities.
• Invitees are owed the highest duty: reasonable inspection, discovery, warning, and remediation of dangers the possessor knows or should know about, including many natural conditions.
• Open and obvious dangers typically limit the duty to warn, but not where harm is still foreseeable despite obviousness.
• Recreational use statutes can substantially limit duties to entrants using land for recreation without charge, except for willful or wanton misconduct.
• The modern trend imposes a general reasonable-care duty to all lawful entrants, while preserving special rules for trespassers, though the MBE continues to emphasize the traditional categories.

Key Terms and Concepts

• Possessor of Land
• Trespasser
• Licensee
• Invitee
• Public Invitee
• Business Invitee
• Condition vs Activity
• Artificial Condition
• Natural Condition
• Discovered Trespasser
• Anticipated Trespasser
• Flagrant Trespasser
• Attractive Nuisance Doctrine
• Open and Obvious Danger
• Recreational Use Statute