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CHAPTER
12
Rights and Duties of
Landowners and Occupants
“The house of everyone is to him as his castle and fortress, as well for his
defence against injury and violence as for his repose.”
Sir Edward Coke
“LAND: A part of the earth’s surface, considered as property. The theory that
land is property subject to private ownership and control is the foundation of
modern society, and is eminently worthy of the superstructure. Carried to its
logical conclusion, it means that some have the right to prevent others from
living; for the right to own implies the right exclusively to occupy, and in fact
laws of trespass are enacted wherever property in land is recognised. It follows
that if the whole area of terra firma is owned by A, B and C, there will be no
place for D, E, F and G to be born, or, born as trespassers, to exist.”
Ambrose Bierce, Devil’s Dictionary
LEARNING OUTCOMES
After studying Chapter 12, you should:
•
Know general tort law.
•
Recognize and distinguish trespass to land, nuisance, and invasion of privacy
•
Understand the law of lost, misplaced, and abandoned property
•
Be aware of the duties owed to persons outside real estate as well as the duties to persons
entering the land
Acquiring real estate through purchase, lease, death, or adverse possession brings the
owner a bundle of rights and duties that affect a person’s ability to develop and use the
property. This chapter considers the rights and duties arising under tort law. Although
this chapter includes nwnerous examples involving real estate owners, the rules also
apply to tenants or other occupants of real estate. Later chapters (Chapters 13 and 14)
discuss the private and public control of land use by contract, planning and zoning, and
environmental legislation.
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Part 3: Land Use and Regulation
FIGURE 12.3 Persons Entering Land
Trespassers
Categories of Persons
Entering Real Estate
~(
~(
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(
Child Trespassers
Licensees
Invitees
)
)
)
)
co
C
·e
.9
.,~
co
C
($
Q
Trespassers
trespasser
One who enters land
without permission of the
owner.
The person entering the land might be a trespasser-someone on the land without the
permission of the owner. The principle favoring the owner’s free use of the land has the
greatest appeal in cases of trespass. The general rule is that the owner is not liable
for injuries to the trespasser when the owner is unaware of the trespasser on the land.
An owner who knows that the trespasser is on the property must not intentionally injure the trespasser. Most states also require an owner who is engaged in activities on
the property to exercise reasonable care not to injure known trespassers and to warn
them of hidden dangers of which the landowner is aware. As one Pennsylvania court
observed:
It is true that, unless and until the property owner, or the operator of the instrumentality involved, becomes apprised of his presence no duty in regard to the trespassers safety
arises, but when the owner or operator is put on guard as to the presence of the trespasser, the latter immediately acquires the right to proper protection under the
circumstances. 98
The major difficulty is determining whether the owner knew the trespasser was on the
land. Although the owner’s knowledge of the trespasser’s presence is usually a question
of fact, the law presumes that the owner knows of the trespasser-even when the owner
is unaware of the individual trespasser’s presence-when the owner knows that trespassers frequently enter the property. For example, a homeowner who knows that students
from a nearby college continually cross his backyard on the way to and from classes
must exercise reasonable care in his activities and in warning the students of known concealed dangers such as a high-tension wire. The Supreme Court of Missouri ruled on a
case involving a landowner who maintained a three-eighths-inch wire cable across his
road meant to “dissuade” four-wheelers from intruding on his property. The court concluded that the landowner should be found liable to two trespassers who sustained serious injuries if, upon remand to the trial court, it was discovered that he did not
adequately warn people about the cables. 99
A special type of trespasser-a person who enters the property to commit a criminal
act-has caused legal controversy in recent years. Concerned by the increase in crime,
some owners have developed special security devices-such as shotgun traps, explosive
devices, and dangerous animals-to deter criminal trespassers. In one well-publicized
example, owners of a jewelry store in San Francisco, victimized by five break-ins, placed
Chapter 12: Rights and Duties of Landowners and Occupants
511
two four-inch tarantulas in their window display. While often effective, such devices raise
a difficult legal issue: May a criminal injured by the security device recover damages
from the owner?
As a general rule, owners may use dangerous security devices to protect their property
only if they could legally have used the same measure of deterrence had they personally
confronted the criminal. Owners may not use deadly force in person to defend just their
property or defend their property through remote security devices because the law values
human life more than property rights. Thus, an owner who is not present cannot use
deadly force in the form of a security device to deter petty thieves, as the classic case
from Iowa in the End of Chapter Case box demonstrates. 100
END OF CHAPTER CASE
Should Edward Briney be held liable to a trespasser who was seriously injured
by a gun rigged by Briney to fire at trespassers when the door to a room in his
unoccupied farmhouse was opened? In Katko v. Briney, at the end of the chapter,
the Iowa Supreme Court discusses the question.
An important exception to the rule enunciated in the famous case of Katko v. Briney
is when deadly force is used to protect a person’s life and that of his family when someone threatens them in their home; however as the Ethical and Public Policy Issues box
discusses, state laws differ on how the homeowner carries it out.
ETHICAL AND PUBLIC POLICY ISSUES
When Is It Legal and Moral to Use Killing Force to Protect
Yourself from Personal Injury When an Intruder Enters
Your Home?
A growing number of states have passed statutes based on the “Castle Doctrine,”
also called “Defense of Habitation” acts. Under these laws a person imminently
threatened in his home has no duty to retreat and can use deadly force to repel
the intruder. The property owner who uses deadly force also is generally protected from civil liability. In other states, a person threatened in his home must
attempt a reasonable flight from the attacker before using deadly force. However,
if he has no remaining means of escape and is seriously threatened, he may then
use killing force against the intruder. 101 Which of these two laws is the most ethical? Can killing another person be morally justified? If so, under what circumstances can it be? Would requiring a person to retreat from the intruder only put
the homeowner in greater danger of harm? Do intruders surrender their rights
under the law, including their right to life, when they engage in certain criminal
activities?
The Castle Doctrine should be distinguished from the so-called “Stand Your Ground”
laws. In particular, Florida’s law has emerged as the subject of intense debate since the
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Part 3: Land Use and Regulation
shooting death of Trayvon Martin and the murder trial and exoneration of his killer,
neighborhood watch volunteer, George Zimmerman. As stated the Castle doctrine provides that a person has no duty to retreat in her home when attacked. The Stand Your
Ground law goes further by granting a person basically the same rights as the Castle
Doctrine but expanding it to anywhere a person has a legal right to be, including a public
place or her car, although if she uses a firearm to defend herself she must be legally entitled to own and carry it.
Do landowners also have a duty to protect trespassers when they are threatened by
someone else on their land? The Minnesota case in the Case in Point box addresses
this issue.
A Case in Point
102
In Doe v. Brainerd International Raceway,
“Doe,” a 16-year-old runaway,
illegally entered the Brainerd International Raceway. Doe voluntarily entered
the wet T-shirt contest; and within 15 minutes, contestants began stripping.
“At that point, most of the contestants left the stage, but the four or five women
remaining on stage [including Doe] continued a sexual performance which
included complete nudity and oral sex.” The crowd, mostly men, remained for
about one hour and watched. Doe claimed that she was encouraged to continue
with her sexual display so that she could win the contest. She also admitted that
“she was drunk and high on cocaine …. ”
She later filed a lawsuit claiming that management and the raceway should
have protected her from the sexual encounters. The Minnesota Supreme Court
stated that “[T]he outcome of the case turns on the extent of the duty owed by
a landowner and operator of a place of amusement to a trespasser in a civil cause
of action for injuries resulting from the criminal activity of third parties. We
reverse the court of appeals and hold that a landowner does not have a duty of care
to a trespasser when the trespasser knows or should be aware of the risks involved
and helped create the risks.”
Child Trespassers
attractive nuisance
doctrine
A duty of reasonable care
owed to a trespassing
child unable to appreciate
the danger from an
artificial condition or
activity on land to which
the child can be expected
to be attracted.
After graduating from college, William purchased a ten-acre parcel of land in a rural
area and excavated a small pond on the land, which he used for swimming and boating.
Two years later a nine-year-old boy, who entered the property without William’s permission, drowned after diving from a dock that William had built at one end of the pond. If
William is sued for damages by the drowned boy’s parents, he might argue that under
the trespasser rules just discussed, an owner is not liable for injuries to an unknown trespasser, or even to a known trespasser, unless the injury is caused by a hidden dangerous
condition.
Still, should the usual trespasser rules apply to children? The Supreme Court originally provided an answer in 1873, JOJ in a case that allowed recovery by a child injured
while playing with a railroad turntable. While the attractive nuisance doctrine originally
required that the child trespasser be attracted to the danger, most courts have now
dropped this requirement. For the recovery of damages under the attractive nuisance theory, courts now require the injured party to prove five elements when young children trespassing on land are injured by a structure or other artificial condition. 104 In William’s case,
the child was young and was injured while using an artificial condition-the dock that
Chapter 12: Rights and Duties of Landowners and Occupants
513
William had built at the edge of the custom-made pond. Thus, parents in most states will
be allowed to recover damages if they can prove the following elements.
First, the possessor must know or should know that young children are likely to trespass on the land where the artificial condition is located. If William’s pond is located in a
remote area far from dwellings, it is unlikely that this element could be proven. But if the
pond is adjacent to a playground used by young children, the owner should know that
young children are likely to trespass.
Second, the owner must know or should know that the artificial condition exists and
must realize or should realize that it involves an unreasonable risk of serious harm or
death to young children. Almost any artificial condition can be dangerous in the hands
of young children. For example, if William left a beach towel on the dock, a young child
might use the towel to “snap,, another child and, in so doing, blind the child. Although
William should know of this potential danger, it is not considered an unreasonable risk.
In other words, William is not expected to childproof his property because doing so
would be impractical and virtually impossible.
The question in William’s case is whether water-like the towel-should be regarded
as an ordinary or unreasonable risk. The risk of drowning in water is always a risk, but is
generally not considered an unreasonable risk because children are taught from a very
early age the danger of water. However, if other factors were involved, William might
be liable. For instance, if the dock was located in extremely shallow water and the young
child drowned after striking his head on the bottom of the pond, a court would probably
determine this to be an unreasonable risk.
Even where the condition obviously involves an unreasonable risk, the landowner will
not be liable if she has no reason to know of its existence as the case from Pennsylvania
in the Case in Point box demonstrates.
A Case in Point
In Norton v. City of Easton, 105 the defendant operated a service station and stored
wrecked cars, which he towed for the city to an adjacent lot. A group of boys went
to the station to obtain a map, visited the lot, and began looking through the cars.
In one wrecked automobile, the boys discovered a box of .22 bullets in the glove
compartment. They took the bullets and later put them in a matchbox and lit
it. The box exploded, and one of the boys-the plaintiff-was blinded. The court
decided that the service station owner should not be held liable because the owner
did not know that the bullets were in the glove compartment and had no reason to
know of their existence.
Third, it must be proven that the young child, because of his age, did not realize the
risk created by the artificial condition. Thus, even a landowner who knows that the artificial condition is unreasonably dangerous will not be liable if the child who was injured
was old enough to appreciate the danger. In the Louisiana case of Richards v. Marlow, a
13-year-old girl slipped and injured her mouth while walking on a wet pipe that had
been part of a pier on the defendant’s property. The court denied recovery on the
grounds that a 13-year-old should realize the risk of balancing on the pipe in such
conditions. 106
In William’s case, the issue is whether a nine-year-old should realize the risk of diving
off the dock. As previously discussed, water itself is such an obvious danger that it is not
generally considered an unreasonable risk even to a very young child. However, the risk
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Part 3: Land Use and Regulation
of diving into shallow water is one that a nine-year-old might not apprL’ciatc. That is a
question for the jury; but if the injured child has reached a certain agL’, which usually
varies from 13 to 16 depending on state law, the judge will not allow a jury verdict for
the child. 107
Fourth, the risk to young children must be great compared to the utility of the artificial
condition to the owner and the burden of removing the danger. In \Villiam’s case, the utility of the pond would possibly outweigh the risk to young childrL’n. As a California court
noted,
where ponds do not exist naturally [they] must be created, i11 order to store water for
stock and domestic purposes, irrigation, etc. Arc we to /,old tl,at c,·cry ow11cr cf a pond
or reservoir is liable in damage for any child tl,at comes u11im•itccl upo11 /,is premises
and happens to fall in the water and drown? If so, the11 upo11 the same principle must
the owner of a fruit tree be held liable for the death or i,~;ury