Ag Torts 101: Premise Liability

Sorry that it’s been a while since my last Ag Torts 101 blog.  As a reminder, in this blog, I stated that a “tort” is a civil wrongdoing other than breach of contract.  Among the different types of torts, negligence is the most common tort among farms, ranches, and agribusinesses.  In this blog, I stated that the four common law elements for negligence are:  duty, breach, causation and damages.  Each of the four elements of negligence must be satisfied before a party is liable for negligence.   I discussed the duty element in this blog and explained the plain-vanilla standard of care that applies in most circumstances.  In that blog, I noted one exception to this general rule:  premise liability.

In New York, however, courts still apply the general standard of care:  what a reasonable person would do in those particular circumstances.  But for the vast majority of states there are special standards according to whether the person harmed is a trespasser, licensee, or invittee.

Trespasser:  Landowners typically have a duty to foreseeable trespassers when there is something on their property that they know is highly dangerous (i.e., capable of killing somebody), artificial (i.e., no duty to protect against natural hazards), and concealed (i.e., the trespasser would not easily see the hazard).

Licensee:  An example of a licensee would be a social guest (e.g., barn dance, party).  In such cases, most courts hold that property owners have the duty to protect their licensees from dangerous conditions that the property owner knew of in advance and is concealed.  Furthermore, the majority of courts hold that landowners have the duty to warn their licensees of this dangerous condition if it is unlikely to be discovered (e.g., a hidden sprinkler system).

Invitees: Invitees are those who come onto a property for commercial purposes (e.g., agritourism, show pig sales).  Most courts hold that owners in such cases have the duty to warn invitees of dangerous conditions that are not obvious when the owner either knew or should have known of the dangerous condition (artificial or natural).  Additionally, in these cases, landowners have the responsibility to make reasonable investigations for dangerous conditions.

As a general disclaimer, courts do vary somewhat on viewpoints on premise liability.  As always, you are encouraged to talk to a local attorney before depending on the information in this blog.

Tomorrow’s blog is about agritourism, which will direct you to an article written by a colleague of mine.  It touches about the increased standard of care for invitees with agritourism.  This blog will hopefully lay the groundwork for his article.  Come back tomorrow for the link.