Standard homeowners policies provide liability coverage for bodily injury or property damage that is accidentally caused by an insured anywhere in the world. Of course, coverage is subject certain exclusions. For most insureds, the biggest exposure is the homeowners premises itself. A neighbor trips and falls on the insured's uneven sidewalk. During a game of hide-and-seek, a blindfolded child runs into a rusty hoe left standing against a shed. Even with the best of intentions, it is often impossible to keep premises so safe that an accident could never, ever occur.

Although homeowners are frequently subject to claims based on the recovery theory of negligence (duty owed, duty breached), the standard of negligence found may depend upon the status of the person making the claim: invitee, licensee, or trespasser. 

According to Black's Law Dictionary (Fifth Edition), an invitee is one who is “on land of another if (1) he enters by invitation, express or implied, (2) his entry is connected with owner's business or with an activity the owner conducts or permits to be conducted on his land and (3) there is mutuality of benefit or benefit to the owner.” On the other hand, a licensee is “a person who has a privilege to enter upon land arising from the permission or consent, express or implied, of the possessor of land but who goes on the land for his own purpose rather than for any purpose or interest of the possessor.”  The importance of the distinction is that in some jurisdictions the landowner has a different standard of care depending upon the status of the person coming upon the premises. Indeed, many court cases focus chiefly on determining the status before deciding the standard of care owed.  But in reality, the distinction is often less than clear, leading to much confusion. And, in some jurisdictions, the distinction has been abolished altogether. (See Homeowners & Premises Liability, for a breakdown by jurisdiction. Print subscribers will find this on Public Liability page M.20.)

As for a trespasser, the Webster's Collegiate Dictionary (Tenth Edition) defines trespass, as “to make an unwarranted or uninvited incursion. . .esp.: to enter unlawfully upon the land of another”.

We first consider the invitee. As noted earlier, this is a person usually entering upon the premises because of an invitation, often in connection with a business where there is a mutual benefit. Many jurisdictions hold that invitees are owed the higher standard of care, because of the benefit their being on the premises confers to the landowner. In the case of Poehls v. Turner, 2002 WL 1995492 (Tex. App., not designated for publication.), a friend of the homeowners was asked to come to their home to help run wiring in the attic. The Turners had no ladder to access the attic, so Turner and Poehls climbed onto a large wooden stereo speaker. While climbing down from the attic, Poehls fell and was injured. Poehls argued he was on the property as an invitee; the homeowners, the Turners, stated he was a licensee because no financial benefit accrued to him and thus he was owed a lower standard of care. The court said that although Poehls was not a business invitee, he was more than a licensee. As such, he was owed a heightened standard of care. The owner extending the invitation assumed an obligation to make sure the premises were in a safe condition and suitable for the task being performed. The court remanded the case for further proceedings as to whether Turner's action in not obtaining a ladder rose to negligence.

The Supreme Court of Oklahoma also considered a homeowners  negligence with regard to an invitee. The homeowners hired a roofer to repair and replace their roof, which had been leaking. One of the roofer's employees was standing on the roof removing shingles, when it gave way and he fell partly through it. The employee sued for damages based on allegations of negligence. He claimed that the homeowner owed him a duty to warn of latent defects, and failed to do so. The court said the plaintiff was correct “to the extent that all landowners have duties to members of the public who come upon their property, the nature of the duty varying upon whether the person injured is a trespasser, licensee, or invitee.” In this case, the plaintiff was an invitee, and the landowner owed a duty to keep the premises reasonably safe. But the homeowner could not know of the danger because the wooden decking that broke was hidden, and so had no duty to warn the plaintiff. The court stated it would not impose a duty to warn a business invitee where there was no evidence the homeowner knew or should have known of the danger. This case is McKinney v. Harrington, 855 P.2d 602 (Okla. 1993).

An Indiana case involved a child coming on a neighbor's premises for a garage sale. A dog belonging to the homeowner's friend bit the child, and her parents sued. The parents claimed the homeowner should have removed the dog. The court said that Indiana case law had determined three types of invitees: a public invitee (as to a public park), a business visitor, and a social invitee. The highest duty of care was owed to any of these types of invitees: “When owner or occupant, by enticement, allurement, or inducement, whether express or implied, causes another to come upon his lands, he then assumes obligation of providing for safety and protection of the person so coming. . .” On the other hand, the licensee “takes premises as he finds them and accepts whatever perils he incurs in use of such license.” The court decided as a matter of law the child was an invitee, and so the question of what constituted “reasonable care” was remanded to a jury (Schrum v. Moskaluk, 655 N.E.2d 561 [Ind. App. 1996]).

It is common for many homeowners to have various uniformed persons come on their premises, be they meter readers, mail carriers, or others. The status of these invitees can vary by jurisdiction; however, there are some general holdings. A firefighter or police officer is held to be a “professional rescuer” or “public safety officer” and therefore generally barred from bringing action against property owners while confronting normal, foreseeable risks. For example, in Meunier v. Pizzo et al., 696 So. 2d 610 (Ct. App. La. 1997), the court held that a police officer, injured while inspecting an uninhabited home for trespassers, was barred from bringing a claim for damages. The officer struggled with a trespasser and fell on a beer can left on the stairs, but the court found that the risk was not outside the risks assumed by the officer as a professional rescuer. The property owner had not been grossly negligent in asking for police help, and was not at fault.

But in DeLaire v. Kaskel et al., 2004 WL 103378 (R. I.) the Supreme Court said the “public safety officer's rule” did not apply to an animal control officer who was called to the defendant's premises to remove a stray cat. The officer pulled into the defendant's driveway, and in alighting from his van, stepped on a patch of snow and fell, injuring himself. He brought action against the homeowners. In remanding the case to the superior court to determine the homeowner's negligence, the court said that the public safety officer's rule should not apply to an animal control officer who was much lower paid than either a police officer or firefighter, and was entitled to workers compensation but not full salary and medical expenses as were police and firefighters injured in the line of duty. Therefore, the “fundamental concept of fairness” dictated that the animal control officer should be allowed to claim for his injury. But in a strongly worded dissent, one justice said: “public policy considerations, therefore, should encourage citizens to seek assistance from animal control officers in dealing with potentially dangerous animals. But this decision, regrettably, represents an unfortunate setback to that worthy goal.” The justice went on to offer this advice to the public: ” When calling for help. . .if what looks like a police officer arrives, bar him or her from the premises until you can ascertain whether he or she is able to collect IOD [injured on duty] benefits, went to the police-training academy, and can take advantage of the Law Enforcement Officer's Bill of Rights.”

Letter carriers are usually held to be invitees, and therefore owed higher standards of care than licensees. But in Jimenez v. Maisch, 748 A.2d 121 (N. J. Sup. App. 2000), this standard did not apply when Jimenez fell on the unshoveled driveway of the Maisch residence. The court said that the duty of care owed was fact-specific, and in this case the letter carrier was delivering mail during a declared snow emergency following a blizzard. The court said that in another situation—where the homeowner allowed a buildup of ice and snow over time—the homeowners might be at fault. But here it was not reasonable to expect them to clear some thirty inches of snow immediately following the storm's end.

A water meter reader, whom one might assume to be an invitee, was actually found to be a licensee in Cresswell v. End, 831 A.2d 673 (Sup. Ct. Penn. 2003). Here, the meter reader fell into the homeowner's window well while attempting to read the meter. The court reasoned that because the homeowner was a customer of the company for which the meter reader worked, the homeowner was obligated to give the company (and its meter reader) permission to come on the premises; the reader was not specifically invited. Further, the company, not the homeowner, had installed the water meter in the location next to the window well. The company had never notified the homeowner that the window well constituted a hazardous condition on the premises, which customary business practice dictated. The meter reader was aware of the window well, having read the meter for some time. Thus, the homeowner breached no duty owed to the meter reader.

Texas law allots the duty owed depending upon the status of the person entering the property of another similarly to other jurisdictions. As with other jurisdictions, these persons are classified as invitees (owed the highest standard of care), licensees (the landowner cannot injure willfully, wantonly, or through gross negligence), and trespassers (the same duty as to a licensee). An agent of the U.S. Border Patrol came onto some property—a permanently closed metal processing plant—abutting the Rio Grande. He and another agent were in search of illegal aliens entering the country from Mexico . The agent, Lechuga, fell while trying to cross a canal leading between two evaporation ponds, and was injured. He claimed that he was an invitee because a Border Patrol presence on the property conferred a benefit on the owner of the closed plant. Further, the plant owners knew the Border Patrol operated on the premises. Therefore, he was owed a higher standard of care. Not so, said the court. The plant owners merely conferred permission to be on the premises, not an invitation. The agent was therefore a licensee.

Texas law contains an exception to the standard of care owed a licensee: “when a possessor has knowledge of a dangerous condition on the land, and the licensee does not, the possessor has a duty either to warn the licensee or to make the condition reasonable safe.” But in this instance, the agent had been on the property prior to his injury. Further, stated the court, there was no evidence presented that the canal (about a foot wide and several inches deep) was unduly dangerous. The agent could not recover for his injury from the property owner. This case is Lechuga v. Southern Pacific Transportation Company, 949 F.2d 790 (Fifth Cir. 1992).

What duty is owed a trespasser? A trespasser, remember, is someone entering unlawfully upon the land of another. Although it might appear that no duty of care is owed to a trespasser, most jurisdictions hold that the landowner must refrain from wantonly or willfully injuring the person after discovering his or her presence. In the case of Taylor v. Duke et al., 713 N.E.2d 877 (Ind. App. 1999), Taylor was injured when he went to sleep underneath a tractor trailer, and the driver drove off. The driver typically delivered a trailer full of merchandise to a store during the night, left the full trailer, and drove away with an empty trailer. Taylor was on his way to a bridge underneath which he normally slept. A sudden rainstorm came up, and he took shelter under the empty trailer. Taylor argued that he should be treated as an invitee and thus was owed a high standard of care, but questioning revealed that when he came onto the property he saw no one around, and in fact did not know whether or not the store was open.

Therefore, as a trespasser, the only duty owed was to avoid wantonly or willfully injuring him. (The retail storeowner had been dismissed from the suit.) The court stated that the same principal of duty owed by the premises owner to a trespasser extended in this instance to the truck driver.

Frequently, trespassers are children. They often come onto property in response to some perceived enticement—an “attractive nuisance” such as a swimming pool. An extension of legal thinking in these instances is that the homeowner cannot simply refrain from wantonly or willfully injuring the trespasser; the trespasser is entitled to a warning of a serious artificial danger. (Adults as well as children are often held to be entitled to such a warning.) In the case of McColley v. Edison Corporation Center et al., 697 A.2d 149 (N.J. Super. 1997), a fourteen-year-old motorbike rider was injured when he struck a wire cable strung about two feet high between two concrete pillars. The defendants in the initial suit were granted summary judgment since the court held that the boy was a trespasser to whom no duty was owed. But on appeal, the court noted that for two years prior to the accident children had ridden motorbikes on the property. No warning had ever been posted to riders to keep off of the property, nor was there a warning about the wire cable. The court also noted that although there was no definitive age at which the duty owed a child trespasser (see next paragraph) changed to the duty owed an adult trespasser, still, there were questions about a fourteen-year-old's being able to recognize the risk. The case was remanded to the jury for further proceedings.

As noted earlier, children as trespassers are excepted from the general rule to refrain from wantonly or willfully injuring them. They are entitled to a heightened standard of care, since given their youth they do not realize the risk involved. According to the Restatement (Second) of Torts (a publication of the American Law Institute), the “possessor of land is liable for harm to trespassing children caused by an artificial condition if: (1) place where condition exists is one where possessor knows or has reason to know children are likely to trespass, (2) condition is one of which possessor knows or should know, and which he realizes or should realize will involve unreasonable risk, (3) children because of their youth do not discover condition or realize risk involved, (4) utility to possessor of maintaining condition and burden of eliminating danger are slight as compared with risk, and (5) possessor fails to exercise reasonable care to eliminate danger or otherwise protect children.”

Although it might appear that children thus have immunity in any and all situations, this is not the case. An “attractive nuisance” on a landowner's premises does not relieve parents (or supervising adults) from their responsibilities. Corbin Mendez, age seven, was injured while jumping on a trampoline with some other children. His parents asserted that the trampoline owners knew that there was danger when more than one person was jumping, and did not take reasonable steps to prevent this from happening. The flaw in the parents  reasoning became apparent in that the trampoline owners were away from home and did not give permission for anyone to jump; the boy's grandmother, who lived nearby, told the children they could play on the trampoline. The grandmother, who Corbin was visiting at the time, was presumed capable of understanding the dangers of trespassing and using the trampoline when she gave permission. The “attractive nuisance” doctrine therefore did not prevail and the homeowners were relieved of responsibility (Morningstar v. Maynard, 798 N.E.2d 920 [Ind. App. 2003]).

The “attractive nuisance” doctrine, because it applies to trespassing children, not licensees or invitees, also relieved the homeowners of responsibility in Bartlett v. Maffett et al., 545 S.E.2d 329 (Ga. App. 2001). A juvenile visitor, a licensee, came with his father to the Maffetts' property. The boy and the Maffetts' grandson began to play. Their play took them into a shed that contained a chain hoist attached to an I-beam. One end of the I-beam had a cap, but the other did not. When the boys played on the hoist, the chain and pulley came off that end, and Bartlett sustained a broken leg. Because the boy was a licensee, not a trespasser, and because the Maffetts had no reason to think the boy would enter the shed, they could not anticipate he would play with the hoist. They were not liable for his injuries.

Sometimes a suit for premises liability can also encompass “negligent supervision” as a theory of recovery. In Johnson v. Pettigrew, 595 N.E.2d 747 (Ind. App. 1992), a child was injured when he decided to “mess around” with a fire set to burn debris, and poured gasoline on it. Jeff Johnson visited the Pettigrews  farm to see their son. The boys were helping with farm chores by burning debris. The Pettigrews  older son and a hired hand were doing chores in a shed, but were keeping an eye on the younger boys. But the boys intentionally went out of their sight, and started another fire. They filled a plastic jug with gas, and took turns stomping on it to propel the gas onto the fire. When gas splashed on Jeff's leg, he was seriously burned. The court found that, as an invitee, Jeff was owed the highest standard of care. But liability for a condition of the premises did not encompass the boy's deliberately playing with the fire. However, because there were issues as to whether Jeff was adequately supervised, the case was remanded for trial on this cause of action.

And in the case of Nunn v. Page, 2004 WL 231470 (Ga. App.), parents brought premises liability and negligent supervision action against neighbors after the parents  son was injured while jumping on a trampoline along with the neighbors  daughter. The court said that the dangers of the trampoline were readily apparent, even to the four-year-old boy, but there was a genuine issue of fact as to whether the children had been supervised. Therefore, the neighbors did not breach the duty of care owed to the four-year-old, but the case was remanded for further proceeding on the issue of negligent supervision.

To lessen the confusion over differences in care owed to licensees or invitees, some jurisdictions have taken the approach of abolishing the common-law distinction between the two. The Supreme Court of Appeals of West Virginia, in Mallet v. Pickens, 522 S.E.2d 436 (W. Va. 1999), said that “the common-law distinction between duties owed by landowners to licensees and invitees is abolished and replaced with standard that landowners or possessors owe any non-trespassing entrant a duty of reasonable care under the circumstances; however, traditional rule with regard to a trespasser, that being that a landowner or possessor need only refrain from willful or wanton injury, is retained.” The court noted that the distinction between invitee and licensee originated in much earlier times (English jurisprudence in the 1800's) and was no longer relevant. The court looked at twenty-five other jurisdictions that no longer made the distinction between licensee and invitee, and said their logic persuaded it to “join the modern trend.”

For the most, courts tacitly acknowledge that many children's games involve risk—some, of course, more than others. It is unrealistic to expect that a child will never attempt a dangerous activity, just as it is unrealistic to believe that other children should warn the child away from the activity.

Two cases involved a game of “kick the can.” This is a game where the person who is “it” must retrieve a can that another child kicks. “It” brings the can back to home base, and counts, usually to a hundred, during which time the other participants scatter to hiding places. In Hoyt v. Rosenberg, 182 P.2d 234 (Cal. App. 1947), a twelve-year-old kicked the can into the face of a child, who lost the sight in an eye as a result. Was the twelve-year-old negligent? The jury returned a verdict in favor of the plaintiff, but the court ruled that the defendant minor could not be found negligent as a matter of law based on the appropriate standard for a child of his age. The court added the boy did not do “anything more or less than healthy boys of his age have done from time immemorial and will continue to do so long as a race retains its activity.”

In the second case, Marchetti v. Kalish, 559 N.E.2d 699 (Oh. 1990), a thirteen-year-old broke her leg when one of the participants ran into her and she fell. The girl sued, alleging the appellant had “negligently and/or willfully, wantonly and maliciously” caused the injury. The trial court found that the appellee had assumed the risk as a voluntary participant in the game. The court of appeals reversed, saying an issue of fact existed. But the Ohio Supreme Court reversed the appeals court, reinstating the trial court. The court said “We hold that where individuals engage in recreational or sports activities, they assume the ordinary risks of the activity and cannot recover for any injury unless it can be shown that the other participant's actions were either 'reckless  or 'intentional  as defined in Sections 500 and 8A of the Restatement of Torts 2d.”  Because the appellant's conduct was neither, the girl could not recover for her injury. (This case is also notable for its inclusion of the rules for “kick the can” in an appendix.)

One court's finding was that “children are not liable for injuries arising from their conduct while participating in children's games if the games are customarily played by children and are not inherently unreasonably dangerous.” Here, a ten-year-old was playing with several other children when a six-year-old was injured. The game involved one child lying on his back while another child would sit on that child's feet. The first child would then attempt to catapult the other off. Several adults, including parents of some of the participants, were nearby. The court said that the ten-year-old's behavior did not suggest a breach of any standard of care. The court added that no adult had told the children not to play this game. This case is First National Bank of Arizona v. Dupree, 665 P.2d 1018 (Ct. App. Ariz. 1983).

In Keller v. Mols, 472 N.E.2d 161, the court chastised the appellant: “Assuming that game of floor hockey involves serious risk to participants, 14-year-old boy who had participated in wrestling, football, and basketball at school and suffered diverse injuries while participating in those sports should know of those risks and avoid them.” Robert Keller was injured when, during a game of floor hockey (played with plastic whiffle ball bats or hockey sticks with plastic bottoms, and a plastic puck), Ralph Mols shot the puck in his direction and it struck him in the eye. Keller's parents alleged the Mols were negligent in permitting neighborhood children to play without protective equipment, and that Ralph was negligent in shooting the puck in the direction of a person not wearing the equipment.

The court pointed out that the boys had played the game frequently, in full view of the Kellers prior to the accident, and at no time did the Kellers warn them that the game should only be played while wearing protective equipment.

The Ohio Supreme Court looked to its earlier opinion in Marchetti while deciding a recent case, Gentry el al. v. Craycraft et al., 802 N.E.2d 116 (Oh. 2004). Here, a four-year-old was standing watching his brother, age nine, and another child, age eleven, hammer nails into a chair they were building. The eleven-year-old held the nail to tap it into place. When it appeared to be holding, he hit it harder. The nail flew out of the chair and hit the four-year-old in the eye. His parents sued, alleging the eleven-year-old intentionally, recklessly, or negligently hammered the nail so as to cause injury. The trial court granted summary judgment to the appellants based on Marchetti. On appeal, the court agreed that the boys were involved in a recreational activity, and the eleven-year-old did not act intentionally or recklessly, but nonetheless reasoned that the boy was too young to assume the risk involved in being a spectator. The supreme court, however, said that the children were engaged in “typical backyard play, which falls within the definition of a recreational activity.” The court added that the opinion rendered in Marchetti had never been intended to be limited to spectators “old enough to appreciate the risks inherent with the sport or activity. In fact, we made it clear that the opposite was true when we stated that the reckless/intentional standard of liability applies regardless of whether the activity was engaged in by children or adults, or was unorganized, supervised, or unsupervised. We recognized that '[t]o hold otherwise would open the floodgates to a myriad of lawsuits involving the backyard games of children.'”

Two New York cases discuss injuries to children when activities are organized or under adult supervision. In Tobin v. Hewlett Branch Athletes, Inc., 2 A.D.2d 758 (N.Y.S.2d 1956), the court dismissed the complaint. The trial court found for the plaintiff, who was injured during a game consisting of a camp counselor throwing a ball at a group of children, who then tried to avoid being hit by it. On appeal, the court said there was no evidence that the counselor threw the ball with excessive speed or force, and the child had participated in the game many times before and was adept in playing it. The court added that if the complaint were not being dismissed, it would order a new trial on the grounds that the previous verdict was against the weight of the evidence.

The case of Totan et al. v. The Board of Education of the City of New York , 133 A.D.2d 366 (N.Y.S.2d 1987) involved a child injured while playing a game of “Red Rover” (see later) in the schoolyard. The jury determined that the child was 25 percent negligent, and the school board, 75 percent. But the court set aside this verdict, and the appellate court affirmed, that based on inconsistent testimony from the child (it appeared the game had barely begun when the child was injured), and the school's policy of forbidding the game and providing schoolyard supervisors. The court added, “it has long been held that a board of education is not an insurer of the safety of its students and cannot reasonably be required to 'watch all movements of all pupils.'” (“Red Rover” is a game whereby teams face each other at some distance and lock arms. One team then dares another team member to run and break through.)