Homeowner Liability: Invitees, Licensees, and Trespassers

It’s important to maintain a safe property. But homeowners can’t be expected to prevent every personal injury that could occur on their premises. Yet, the law requires owners to meet a minimum standard of safety for anyone who enters the property. 

What Is Homeowner Liability?

Homeowner liability refers to a property owner’s responsibility for risk of harm to others. It falls under premises liability law, an area of law concerned with dangerous conditions on property.

A premises liability claim arises from unsafe conditions on real estate. Someone may be injured on a person’s property, or worse, they may suffer wrongful death.

Homeowners’ liability for injuries suffered on property will vary depending on:

• The type of visitor who suffers the injury
• The existence of unsafe versus safe conditions
• Whether the visitor had the owner’s permission to be present
• The extent of a property owner’s duty and reasonable care undertaken by them

Your Legal Duty of Care Varies 

There are different legal rules in place in every state where an injury occurs. Generally, courts will focus on the status of the injured visitor in determining the liability of the owner or occupier.

Courts will look at whether the injured party was one of the following:

• Invitee
• Licensee
• Adult trespasser
• Child trespasser

A landowner has a duty of care with respect to each of the above types of visitors. In general and across most states, personal injury laws require property owners to behave reasonably. That means they must act as a reasonable person under the circumstances in order to prevent foreseeable harm to likely victims, but the type of visitor and the nature of a hazardous condition can create nuances as described below.

Duty to Invitees

When a homeowner invites or induces others to enter the premises for any lawful purpose, this triggers the homeowner’s duty to exercise ordinary care to keep the premises safe. In most states, the highest duty of care is owed to child invitees.

An invitation may be:

• Expressed, such as through words like “please come in”
• Implied from known customs or use of the premises
• Inferred from the homeowner’s conduct

For example, customers may enter a grocery store for business purposes. Contractors may enter a home to conduct construction work. These people would be considered invitees.

Duty to Licensees

A licensee is a person who has no contractual relation with the property owner, but who is permitted, either expressly or implicitly, to be on the premises. A social guest at a residence is normally considered a licensee. Since they are there for a social purpose, they have permission to be on the premises.

The homeowner is usually liable only for willful or wanton injury to a licensee. This means that the homeowner is required to exercise enough care to prevent injury to a licensee who is actually known to be, or could reasonably be expected to be, within the range of a dangerous act or condition. A property owner should always warn licensees about known dangers on the property.

Duty to Adult Trespassers

A trespasser is a person who enters the premises of another without express or implied permission of the owner, for the trespasser’s own benefit or amusement.

It’s surprising to many homeowners that trespassers should be accommodated on private property, but a duty of care is also owed to people who have no permission or lawful right to be on the premises. This duty is generally minimal. Landowners are not obligated to protect trespassers who enter their property without permission. But they can’t willfully injure trespassers either.

If a landowner knows, or should know, that there are frequent trespassers on their property, they may be liable for any injuries caused by an unsafe condition on the property if:

• The condition is one the owner created or maintained
• The condition was likely to cause wrongful death or serious bodily harm
• The condition was such that the owner had reason to believe trespassers would not discover it before becoming injured by it
• The owner failed to exercise reasonable care to warn trespassers of the condition and the risk presented

Once the owner is aware of the trespasser’s presence or can reasonably anticipate such presence from the circumstances, then the owner has a duty to exercise ordinary care to avoid injuring the trespasser. For example, evidence of skateboarders in an unfinished swimming pool would fall into this category.

Duty to Minor Trespassers

A different rule applies when child trespassers are involved. In the case of children who wander onto property without authorization, property owners have a duty to ensure that their property is safe. The logic behind this exception is that children are sometimes naïve to dangers on property.

They could be lured to dangerous conditions such as:

• An unattended swimming pool
• An abandoned well
• Heavy machinery

These potential hazards are referred to as attractive nuisances, since a reasonable person should know that such conditions can attract children.

A property owner has a duty to inspect their property to see if any potentially dangerous conditions might attract children. If so, they must act at once to correct the unsafe condition(s).

A property owner may be liable for an injury to a trespassing child if they knew, or should have known:

• Young children were likely to trespass in the area of a dangerous condition on the property that involved an unreasonable risk of bodily harm to children
• Young children would not be aware of the risk
• The utility of the condition is small compared to the risk it represents

Can I Set Traps To Stop Trespassing?

No. A homeowner cannot lawfully prepare pitfalls or traps for a trespasser in order to injure the trespasser on purpose. Owners have a duty to refrain from willful misconduct, including setting up boobytraps. 

Instead, homeowners can use legal methods to discourage trespassing, such as:

• Installing motion-activated lighting
• Setting up security cameras
• Posting signage on the property
• Filing complaints or police reports
• Consulting with a lawyer about other remedies for trespassing

Why Are Owners Liable for Trespassers’ Injuries?

The rationale here is that even strangers may have legitimate reasons to be on private property. For example, an ambulance or fire department employee may need to make an unannounced entry to rescue life. It would be a travesty of justice for them to fall into an unmarked pit in the yard while running through smoke to save victims. There are also scenarios in which the law allows non-emergency trespassers to enter private land, such as for limited hunting purposes.

Dealing With an Injury Claim? Call an Attorney

When you buy or own a home, taking measures to prevent injuries probably isn’t your immediate concern. But if someone gets hurt, you may be held responsible. It would be helpful to have legal advice from a real estate attorney to understand your obligations, especially if you own property with unique hazards and features.

You may have been injured on someone’s property, or perhaps someone fell and got hurt at your place. You might be wondering about your legal rights and whether there’s a premises liability case.

For such claims, speak with a personal injury lawyer who is also a premises liability attorney. Many premises liability lawyers offer free case evaluations. They can advise you on applicable disclaimers and help you fight the insurance companies.