Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 8. Duty Problem
American thought, the dominance and prestige of the landowning class in England during the
formative period of the rules governing the possessor’s liability, and the heritage of feudalism.
The departure from the fundamental rule of liability for negligence has been accomplished
by classifying the plaintiff either as a trespasser, licensee, or invitee and then adopting special
rules as to the duty owed by the possessor to each of the classifications. Generally speaking a
trespasser is a person who enters or remains upon land of another without a privilege to do so; a
licensee is a person like a social guest who is not an invitee and who is privileged to enter or
remain upon land by virtue of the possessor’s consent, and an invitee is a business visitor who is
invited or permitted to enter or remain on the land for a purpose directly or indirectly connected
with business dealings between them.
Although the invitor owes the invitee a duty to exercise ordinary care to avoid injuring
him, the general rule is that a trespasser and licensee or social guest are obliged to take the
premises as they find them insofar as any alleged defective condition thereon may exist, and that
the possessor of the land owes them only the duty of refraining from wanton or willful injury.
The ordinary justification for the general rule severely restricting the occupier’s liability to social
guests is based on the theory that the guest should not expect special precautions to be made on
his account and that if the host does not inspect and maintain his property the guest should not
expect this to be done on his account.
An increasing regard for human safety has led to a retreat from this position, and an
exception to the general rule limiting liability has been made . . . for the protection of the licensee
has been imposed . . . in cases involving dangers known to the occupier. . . .
Another exception to the general rule limiting liability has been recognized for cases
where the occupier is aware of the dangerous condition, the condition amounts to a concealed
trap, and the guest is unaware of the trap. . . .
The cases dealing with the active negligence and the trap exceptions are indicative of the
subtleties and confusion which have resulted from application of the common law principles
governing the liability of the possessor of land. Similar confusion and complexity exist as to the
definitions of trespasser, licensee, and invitee.
In refusing to adopt the rules relating to the liability of a possessor of land for the law of
admiralty, the United States Supreme Court stated:
The distinctions which the common law draws between licensee and invitee were
inherited from a culture deeply rooted to the land, a culture which traced many of
its standards to a heritage of feudalism. In an effort to do justice in an industrialized
urban society, with its complex economic and individual relationships, modern
common-law courts have found it necessary to formulate increasingly subtle verbal
refinements, to create subclassifications among traditional common-law categories,
and to delineate fine gradations in the standards of care which the landowner owes
to each. Yet even within a single jurisdiction, the classifications and
subclassifications bred by the common law have produced confusion and conflict.
As new distinctions have been spawned, older ones have become obscured.
Through this semantic morass the common law has moved, unevenly and with
hesitation, towards “imposing on owners and occupiers a single duty of reasonable
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