Real Property Condition and Owners Occupants and Lessors

5.20F – Duty Owed — Condition Of Premises

5.20F DUTY OWED — CONDITION OF PREMISES

1. Adult Trespasser — Defined and General Duty Owed
A trespasser is a person who enters or remains upon land in the possession of another without a right to enter or remain on the property. A right may be created by the possessor’s consent or otherwise. An owner/occupier of property owes a duty to a trespasser to refrain from acts which willfully injure the trespasser.

2. Infant Trespasser — Defined and General Duty Owed (10/03)
A trespasser is a person who enters or remains upon land in the possession of another person without a right to enter or remain on the property. A trespasser is one who is not invited, allowed, or privileged to be on another’s property. The owner or occupier of property owes a duty to an adult trespasser only to refrain from acts, which would willfully injure the trespasser. This rule of law on the obligations of owners and occupiers of property towards adult trespassers is modified in the case of children trespassers.

Although a possessor of land generally is not required to keep his/her land safe for trespassers, an exception exists for those trespassers who are children. Because children may lack sufficient discretion for their own safety, a possessor of property, who maintains an artificial condition upon his/her property, will be liable for physical harm to a child trespassing on his/her property caused by the artificial condition if:

(a) the possessor of the property knows or has reason to know children are likely to trespass in the place where the condition exists, and

(b) the possessor of the property knows or has reason to know and realizes or should realize that the condition involves an unreasonable risk of death or serious bodily harm to such children, and

(c) the children because of their youth either

  1. do not discover the condition, or
  2. do not realize the risk involved by trespassing in that area of the property made dangerous by the condition, or
  3. do not realize the risk involved in intermeddling with the condition, and

(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to the children involved, and

(e) the possessor of the property fails to exercise reasonable care to eliminate the danger or otherwise protect the children.

In order for the defendant to be held liable for the plaintiff’s injuries, the plaintiff must prove each and every one of these five elements.

In this case the plaintiff has alleged that he/she was injured as a result of. I will now discuss each of these five elements with you as they relate to that condition.

(a) the possessor of the property knows or has reason to know children are likely to trespass in the place where the condition exists,

If you find the landowner or occupant has no reason to anticipate the presence of children at a place of danger on his/her land, he/she has no duty to look out for children and no liability for injuries sustained by children trespassing at such place of danger.

When I say the plaintiff must prove the possessor of land “knows” or “has reason to know” children are likely to trespass at a place of danger on his/her land, I mean the law charges a defendant with information from which a person of reasonable intelligence would infer that children are likely to trespass on the property and would govern his/her conduct upon the assumption that they would.

(b) the possessor of the property knows or has reason to know and realizes or should realize that the condition involves an unreasonable risk of death or serious bodily harm to such children,

When I say the plaintiff must prove the possessor of land “knows” or “has reason to know” that the condition involves an unreasonable risk of death or bodily harm, I mean the law charges a defendant with information from which a person of reasonable intelligence would infer that the condition involves an unreasonable risk of death or bodily harm and would govern his/her conduct upon the assumption that the condition is likely to be dangerous to trespassing children.

In determining whether a child because of his or her youth either did not discover the condition, or did not realize the risk involved by trespassing in that area of the property made dangerous by the condition, or did not realize the risk involved in intermeddling with the condition, you are to determine whether the child’s state of mind at the time of the accident was such that either he/she did not discover the condition, or he/she did not realize the risk involved by trespassing in that area of the property made dangerous by the condition, or he/she did not realize the risk involved in intermeddling with the condition.

If you find that the child, regardless of his/her age, did in fact discover the condition and realize the risk and appreciate the danger involved, and still proceeded despite knowledge and appreciation of the danger, he/she cannot recover for his/her injuries. The purpose of the duty placed upon the possessor of property is to protect children from dangers, which they do not appreciate, but not to protect them against harm resulting from their own immature recklessness in the case of dangers, which they know and appreciate. Therefore, even though the possessor of land should know that the condition is one that children are unlikely to appreciate the full extent of the danger of meddling with it or encountering it, the possessor of land is not subject to liability to a child who in fact discovers the condition and appreciates the full risk involved, but nonetheless chooses to encounter it out of recklessness or bravado.

(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved,

In determining whether a particular condition maintained by a possessor of land involves an unreasonable risk to trespassing children, you must compare the recognizable risk to the children with the usefulness to the possessor of land in maintaining the condition. A particular condition is, therefore, regarded as not involving an unreasonable risk to trespassing children unless it involves a risk of serious bodily harm to the children, and could be removed without any serious interference with the possessor’s legitimate use of his/her land.

(e) the possessor of the property fails to exercise reasonable care to eliminate the danger or otherwise protect the children.

The possessor of land is liable to the trespassing child only if he/she has failed to conform to the standard of care of a reasonable person in the same or similar circumstances.

Even if you find the possessor of land knew or had reason to know that children were likely to trespass on the property, and that the condition on the land involved an unreasonable risk of harm to the trespassing children, and even if you find the children were not likely to discover or appreciate the risk, the possessor of land is liable only if you find he/she failed to take such steps as a reasonable person would have taken to make the condition safe or to protect the children.

If you find that the possessor of land took the same care that a reasonable person in the same or similar circumstances would take to make the condition safe or protect the children which he/she had reason to know would trespass on the property, then the possessor of property is not liable even though an injury has occurred to the trespassing child.

In dealing with the obligation of the possessor of land to use reasonable care to eliminate the danger or otherwise protect an infant trespasser, you may consider whether a warning would have been sufficient. In a particular situation, a warning may be sufficient, and if you find that the possessor gave such a warning, but that warning was disregarded by the child, you may find for the defendant. In that connection, you must also determine whether the child was mature enough to understand the full nature and scope of the warning and danger involved. Only if you find that the child was capable of understanding the warning and danger involved may you find for the defendant in this regard. If, however, you find that the child was too young to understand or heed the warning, or that the warning was not sufficient, a possessor may not relieve himself/herself from liability simply by giving such warning.

A landowner or occupant is responsible for harm caused by artificial conditions upon his or her land.

Conversely, a landowner or possessor is not responsible for harm caused by a natural condition upon the land, even if you find the natural condition of the property was a proximate cause of the accident and the minor plaintiff’s injuries. In order for you to find the defendant liable it is not necessary that he/she be the person who created the condition that caused the plaintiff’s injuries. You may find defendant liable even though the condition was created by some third person, provided you find the defendant had actual knowledge of the condition and should have foreseen that the condition would create an unreasonable risk of harm to children entering the property. However, the landowner has no obligation to make regular inspections upon his/her property for dangers created by others.

In this case, the defendant claims the minor plaintiff was negligent, in other words, that the minor plaintiff failed to exercise that degree of care or caution for his or her own safety that you would expect of a reasonable child of the same age.

In order to decide whether or not the minor plaintiff was negligent, you must consider the child’s actions or inactions by an evaluating whether the child failed to exercise that degree of care for his or her own safety that a person of the same age would have exercised under the same or similar circumstances.

a. In General (7 years and older)
A child, old enough to be capable of negligence, is required to act with the same amount of care as children of similar age, judgment and experience. In order for you to determine whether a child has acted negligently, you should take into consideration the child’s age, intelligence and experiences. Also, you must consider the child’s capacity to understand and avoid the danger to which he/she was exposed in the actual circumstances and situation in this case. You, the jury, must decide the factual question of whether this child was comparatively negligent.

b. Where Child is Under 7 Years
There is a presumption in the law that a child under the age of seven years is not capable of acting negligently. You may reject this presumption only if the party who is claiming the child was negligent proves that this particular child had the experience and the capacity to avoid the danger, which was present in this situation.

If you decide that this child had the capacity to act negligently, then you must review the facts to see if the child failed to use that amount of care to avoid the danger, which should have been exercised by children with like experiences and intelligence.

If you find that the minor plaintiff deviated from this standard of care, then you will find that the minor plaintiff was also negligent, and you will then consider whether or not the negligence of the minor trespassing plaintiff was a proximate cause of the accident and the injuries, which you find were caused by the accident.

3. Licensee, Defined and General Duty Owed
A licensee is a person who has the right to enter or remain upon land by the consent of the possessor. He/She is not invited but his/her presence is tolerated. The owner/occupier of property owes a duty to a licensee to abstain from willfully injurious acts. If the owner/occupier knows of a hazardous condition on the premises and the owner/occupier could reasonably anticipate the licensee would not observe and avoid such condition, then the owner/occupier must either give warning of it or make the condition reasonably safe.

4. Social Guest — Defined and General Duty Owed
A social guest is someone invited to his/her host’s premises. The social guest must accept the premises of his/her host as he/she finds them. In other words, the host has no obligation to make his/her home safer for his/her guest than for himself/herself. The host also is not required to inspect his/her premises to discover defects, which might cause injury to his/her guest.

If, however, the host knows or has reason to know of some artificial or natural condition on the premises which could pose an unreasonable risk of harm to his/her guest and that his/her guest could not be reasonably expected to discover it, the owner/occupier owes the social guest a duty to exercise reasonable care to make the condition safe or to give warning to his/her guest of its presence and of the risk involved. In other words, although a social guest is required to accept the premises as the host maintains them, he/she is entitled to the host’s knowledge of dangerous conditions on the premises. On the other hand, where the guest knows or has reason to know of the condition and the risk involved and nevertheless enters or remains on the premises, the host cannot be held liable for the accident.

If you find that the property owner/occupier (1) knew or had reason to know of the dangerous or defective condition, (2) realized or in the exercise of reasonable foresight should have realized it involved an unreasonable risk of harm to the guest, (3) had reason to believe the guest would not discover the condition and realize the risk, and (4) failed to take reasonable steps to protect the guest from the danger by either making the condition safe or warning the guest of the condition and the risk involved, you may find the host negligent under the circumstances. If, however, you find that the defect was obvious and the owner/occupier had reason to believe the social guest would be aware of the defect and the risk involved, you may find the host was not negligent even though an injury occurred.

5. Invitee — Defined and General Duty Owed
An invitee is one who is permitted to enter or remain on land (or premises) for a purpose of the owner/occupier. He/She enters by invitation, expressed or implied. The owner/occupier of the land (or premises) who by invitation, expressed or implied, induced persons to come upon his/her premises, is under a duty to exercise ordinary care to render the premises reasonably safe for the purposes embraced in the invitation. Thus, he/she must exercise reasonable care for the invitee’s safety. He/She must take such steps as are reasonable and prudent to correct or give warning of hazardous conditions or defects actually known to him/her (or his/her employees), and of hazardous conditions or defects which he/she (or his/her employees) by the exercise of reasonable care, could discover.

The basic duty of a proprietor of premises to which the public is invited for business purposes of the proprietor is to exercise reasonable care to see that one who enters his/her premises upon that invitation has a reasonably safe place to do that which is within the scope of the invitation.

6. Implied Invitation
a. Defined
 The test of an implied invitation is whether the entry of the plaintiff upon the premises was for a purpose directly or indirectly connected with the business carried on there by the owner/occupier or was of interest or advantage which was common or mutual to the owner/occupier and to the plaintiff.

Another test of an implied invitation is whether the owner/occupier by his/her arrangement of the premises or other conduct led the plaintiff reasonably to believe that the premises were intended to be used in the manner in which plaintiff used them.

b. Scope of Invitation
The plaintiff is deemed to be an invitee only to the extent that he/she remains within the scope of his/her invitation. An invitation extends to all parts of the premises to which the invitee reasonably may be expected to go in view of the invitation given to him/her, and to those parts of the premises which the defendant by his/her conduct has led plaintiff reasonably to believe are open to him/her.

7. Duty to Inspect Owed To Invitee
The duty of an owner/occupier of land (or premises) to make the place reasonably safe for the proper use of an invitee requires the owner/occupier to make reasonable inspection of the land (or premises) to discover hazardous conditions.

8. Notice of Particular Danger as Condition of Liability
If you find that the land (or premises) was not in a reasonably safe condition, then, in order to recover, plaintiff must show either that the owner/occupier knew of the unsafe condition for a period of time prior to plaintiff’s injury sufficient to permit him/her in the exercise of reasonable care to have corrected it, or that the condition had existed for a sufficient length of time prior to plaintiff’s injury that in the exercise of reasonable care the owner/occupier should have discovered its existence and corrected it.

9. Notice Not Required When Condition is Caused by Defendant
If you find that the land (or premises) was not in a reasonably safe condition and that the owner/occupier or his/her agent, servant or employee created that condition through his/her own act or omission, then, in order for plaintiff to recover, it is not necessary for you also to find that the owner/occupier had actual or constructive notice of the particular unsafe condition.

10. Actual and Constructive Notice Defined
When the term Actual Notice is used we mean that the person charged with a duty of care toward another (such as plaintiff) had actual knowledge of the particular condition involved.

When the term Constructive Notice is used we mean that the particular condition existed for such period of time that an owner/occupier of the premises in the exercise of reasonable care should have discovered its existence. That is to say, constructive notice means that the person having a duty of care to another is deemed to have notice of such unsafe conditions, which exist for such period of time that a person of reasonable diligence would have discovered them.

11. Notice Not Required When Mode of Operation Creates Danger
A proprietor of business premises has the duty to provide a reasonably safe place for his/her customers. If you find that the premises were in a hazardous condition, whether caused by defendant’s employees or by others, such as customers, and if you find that said hazardous condition was likely to result from the particular manner in which defendant’s business was conducted, and if you find that defendant failed to take reasonable measures to prevent the hazardous condition from arising or failed to take reasonable measures to discover and correct such hazardous condition, then defendant is liable to plaintiff.

In these circumstances defendant would be liable even if defendant and his/her employees did not have actual or constructive knowledge of the particular unsafe condition, which cause the accident and injury.

A proprietor of business premises has the duty to provide a reasonably safe place for his/her customers. If you find that a hazardous condition was likely to arise from the particular manner in which defendant’s business was conducted and that defendant’s employees probably were responsible either in creating such hazardous condition or permitting it to arise or to continue, defendant is liable to plaintiff if defendant failed to exercise reasonable care to prevent such hazardous condition from arising or failed to exercise reasonable care to discover and correct such hazardous condition.

In these circumstances defendant would be liable even if defendant and his/her employees did not have actual or constructive knowledge of the particular unsafe condition, which caused the accident and injury.

If you find that defendant did exercise reasonable care in the light of the risk of injury reasonably to be foreseen from the particular manner in which defendant conducted his/her business, then defendant would not be liable to plaintiff unless you find (a) that the hazardous condition was actually caused or created by defendant’s employees or (b) that defendant had actual or constructive notice of the hazardous condition for sufficient time to have corrected it and failed to do so.

12. Notice to Invitee or Obviousness of Defect
a. As Affecting Negligence or Contributory Negligence

Whether defendant has furnished an invitee with a reasonably safe place for his/her use may depend upon the obviousness of the condition claimed to be hazardous and the likelihood that the invitee would realize the hazard and protect himself/herself against it. Even though an unsafe condition may be observable by an invitee you may find that an owner/occupier of premises is negligent, nevertheless, in maintaining said condition when the condition presents an unreasonable hazard to invitees in the circumstances of a particular case. If you find that defendant was negligent in maintaining an unsafe condition, even though the condition would be obvious to an invitee, the fact that the condition was obvious should be considered by you in determining whether the invitee was contributorily negligent (a) in proceeding in the face of a known hazard or (b) in the manner in which the invitee proceeded in the face of a known hazard.

b. Warning of Danger
The duty of an owner or occupier of premises is to provide a reasonably safe place for use by an invitee. Where the owner/occupier knows of an unsafe condition he/she may satisfy his/her duty by correcting the condition, or, in those circumstances where it is reasonable to do so, by giving warning to the invitee of the unsafe condition.

Where a warning has been given, it is for you as jurors to determine whether the warning given was adequate to meet the duty of care owed to the invitee. In this regard you should consider the nature of the defect or unsafe condition, the prevailing circumstances, and the likelihood that the warning given would be adequate to call attention to the invitee of the hazard and of the need to protect himself/herself against said hazard.

c. Distraction or Forgetfulness of Invitee
Even if you find that plaintiff knew of the existence of the unsafe or defective condition, or that the unsafe or defective condition was so obvious that defendant had a reasonable basis to expect that an invitee would realize its existence, plaintiff may still recover if the circumstances or conditions are such that plaintiff’s attention would be distracted so that he/she would not realize or would forget the location or existence of the hazard or would fail to protect himself/herself against it.

Thus, even where a hazardous condition is obvious you must first determine whether in the circumstances the defendant was negligent in permitting the condition to exist. Even if defendant was negligent, however, if plaintiff knew that a hazardous condition existed, plaintiff could not recover if he/she was contributorily negligent, that is to say, plaintiff could not recover if he/she did not act as a reasonably prudent person either by proceeding in the face of a known danger or by not using reasonable care in the manner in which he/she proceeded in the face of the danger. In considering whether plaintiff was contributorily negligent you may consider that even persons of reasonable prudence in certain circumstances may have their attention distracted so that they would not realize or remember the existence of a hazardous condition and would fail to protect themselves against it. Mere lapse of memory or inattention or mental abstraction at the critical moment is not an adequate excuse. One who is inattentive or forgetful of a known and obvious danger is contributorily negligent unless there is some condition or circumstance, which would distract or divert the mind or attention of a reasonably prudent person.



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