General Law On Premises Liability

General Law On Premises Liability

In reviewing a premises liability case, one must determine the status of the claimant, in order to determine what duty is owed and when liability exists against the property owner or other tortfeasors responsible for the safety of person’s on a premises. That is, under Pennsylvania law, the determination of the duty of possessor of land toward a third party entering the land depends on whether the entrant is a trespasser, licensee or invitee.

Updyke v. BP Oil Company, 717 A.2d 546, 548 (Pa. Super. 1998).

Trespassers

The Restatement (Second) of Torts defined a trespasser as "a person who enters or remains upon land in the possession of another without the privilege to do so created by the possessor's consent or otherwise." Restatement (Second) of Torts § 329. See Updyke v. BP Oil Company, supra, 717 A.2d 549. Also, see Cresswell v. END, 2003 Pa. Super. 308, 2003 Pa. Super. LEXIS 2536, 831 A.2d 673 (2003). In Pennsylvania, a trespasser may recover for injuries sustained on land only if the possessor of land was guilty of wanton or willful negligence or misconduct. Rossino v. R.C. Titler Construction, Inc., 553 Pa. 168, 718 A.2d 755 (1998) citing Engle v. Parkway Company, 439 Pa. 559, 266 A.2d 685 (1970). The Pennsylvania Superior Court in Ott v. Unclaimed Freight Company, 577 A.2d 894, 894 (Pa. Super 1990) defined willful or wanton misconduct as:

“Willful misconduct means that the actor desired to bring about the resultant harm, or was at least aware that it was substantially certain to ensue; this means that willful conduct requires actual prior knowledge of the trespasser's peril . . . .Wanton misconduct by contrast, means that an actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. It usually is accompanied by a conscious indifference to the consequences, and not a desire to bring them about; as such, actual prior knowledge of the particular injured person's peril is not required. It is enough that the actor realizes, or at least has knowledge of sufficient facts that would cause a reasonable man to realize, that a period exists, for sufficient time beforehand, to give the actor a reasonable opportunity to take means to avoid the injured person's accident; the actor is wanton for recklessly disregarding the danger presented.” Ott v. Unclaimed Freight Company, supra, 577 A.2d at 897; Graham v. Sky Haven Coal,Inc., 386 Pa. Super. 598, 563 A.2d 891, 895 (1989).

Licensee

A licensee is a person who is privileged to enter or remain on the land by virtue of a possessor's consent. Restatement (Second) of Torts § 330. See Updyke v. BP Oil Company, supra, 717 A.2d at 549. Also, see Cresswell v. END, supra, 831 A.2d 695. A "gratuitous licensee" is one who is upon the land of another solely for licensee’s own purpose, in which the possessor has no interest either business or social. See Sharp v. Luksa, 440 Pa. 125, 269 A.2d 659 (1970). The fact that a licensee may perform some minor or incidental service for his host or possessor of land during a stay does not confer the status to that of an invitee or business visitor. Id. The Restatement (Second) of Torts § 342 sets forth the basis of liability for possessor of land regarding a licensee. The section provides:

“A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,

(a) 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,

(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and

(c) the licensees do not know or have reason to know of the condition and the risk involved.” See Rossino, et. al., v. R.C. Titler Construction Inc., et. al., supra, 718 A.2d at 757. Also, see Cresswell v. END, supra, 831 A.2d at 675.

Invitee

An invitee is either a public invitee or a business visitor. A public invitee is a person who is invited to enter or remain on the land as a member of the public for a purpose for which the land is held open to the public. A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of land. Restatement (Second) of Torts § 332. Also, see Updyke v. BP Oil Company, 717 A.2d at 549 citing Palange v. Philadelphia Law Department, 433 Pa. Super. 373, 640 A.2d 1305, 1307 (1994). Also, see Cresswell v. END, supra, 831 A.2d at 675. An invitee is owed the highest duty that is owed to any entrant upon the land. Swift v.Northeastern Hospital of Philadelphia, 456 Pa. Super. 330, 690 A.2d 719, 722 (1997). Restatement (Second) of Torts § 343 provides that a possessor of land is liable for physical harm caused to his invitee by a condition on land if, but only if, he or she:

“(a) knows or by the exercise of reasonable care would discover the condition, and should realize it involves unreasonable risk of harm to such invitee, and

(b) should expect that they will not discover or realize the danger, or fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.” See Kiehner v. School District of Philadelphia, 712 A.2d 830, 833-34 (Pa. Commw.1998).

In order to obtain the status of a public invitee, the individual must "enter the premises upon invitation and ‘for a purpose for which the land is open to the public'". Updyke v. BP Oil

Company, supra, 717 A.2d at 549 citing Palange v. Philadelphia Law Department, supra, 640

A.2d at 1308; Restatement (Second) of Torts § 332(2). Also, comment b to § 332 discusses the distinction between invitation and permission which is central to a determination of whether an entrant is an invitee or a licensee. That is, comment b states:

Invitation and Permission

Although invitation does not in itself establish the status of an invitee, it is essential to it. An invitation differs from your permission in this:

An invitation is conduct which justifies others in believing that the possessor desires them to enter the land; permission is conduct which justifies others in believing that the possessor is willing that they shall enter if they so desire. See Updyke v. BP Oil, 717 A.2d 546, 549;Restatement (Second) of Torts §332, comment b. Also, see Cresswell v. END, supra, 831 A.2d at 675. However, as set forth in Restatement (Second) of Torts § 343(a)(1). Under Pennsylvania case law, the possessor of land is not liable to the invitee for injuries caused by ‘condition on the land whose danger  is known or obvious to them unless the possessor should anticipate the harm despite such knowledge or obviousness'. Restatement (Second) of Torts §343 (1965) and Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983).

It should also be noted that in determining whether an individual is an invitee as opposed to a licensee does not depended upon the possessor's interests and having the entrant on the land.

Rather the relevant question is whether the possessor desired the presence of the public. Updyke

v. BP Oil Company, supra, 717 A.2d at 550. In the case of Updyke v. BP Oil Company, the possessor of land argued that the Restatement and case law indicate that in order to qualify as an

invitee the landlord must receive a benefit from the entrant's presence. However, the Court in

Updyke found that while this language may be helpful in distinguishing between a business visitor and a licensee, this land owner's interest’s requirement need not exist to find an individual a public invitee. The Court cited comment d to §332 of the Restatement which provides that "where land is open to the public it is immaterial that the visitor does not pay for his admission, or that the possessor's purpose in so opening a land is not a business purpose, and the visitor's presence is in no way related to business dealings with the possessor or to any possibility of benefit or advantage, present or prospective, pecuniary or otherwise to the possessor. Id.

In reviewing the exercise of the duty of care, it should be noted that a possessor of land is not an insurer of the safety of those on its premises. Swift v. Northeastern Hospital of Pennsylvania, 456 Pa. Super. 330, 690 A.2d 719 (1997). In Swift v. Northeastern Hospital, supra, 690 A.2d at 719, the Court noted that the mere existence of an alleged harmful condition of a public place of business or the mere happening of an accident due to such a condition is neither evidence of a breach of the proprietor's duty of care nor is it a presumption of negligence.

It is upon the Plaintiff to demonstrate the existence of a dangerous condition and that the proprietor had a hand in creating the harmful condition or had actual notice or constructive notice of it. At times it may be difficult for a claimant to establish actual notice of a dangerous

condition. However, the claimant may establish constructive notice. That is, the possessor will be found to have constructive notice if it can be shown that the condition existed for sufficient length of time so that he should have known of its existence by the exercise of reasonable diligence. In that situation, he is charged with constructive notice of the defect. Usually, this is

a question of fact determined by the jury. Winkler v. Seven Springs, Inc., 240 Pa. Super. 641,

359 A.2d 440 (1976).

In conclusion, the duty owed to a person on a property depends on his or her status of and how and why that person entered the property. The liability of the property owner or the entity for keeping the property safe depends on the same. This article provided a very general understanding of the same.


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