Teaching Tip 1 (Related to Article 3 — “Cleaning Worker Who Mistakenly Went to Wrong Home Fatally Shot”):  “Homeowner Liability: Invitees, Licensees, and Trespassers” and “Duty of Care Owed to Trespasser”

For an excellent understanding of premises liability for homeowners, read the article, Homeowner Liability: Invitees, Licensees, and Trespassers, written by California attorney Robert Rafii.

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:

(1) The type of visitor who suffers the injury;

(2) The existence of unsafe versus safe conditions;

(3) Whether the visitor had the owner’s permission to be present; and

(4) The extent of a property owner’s duty and reasonable care undertaken by them.

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

(1) Invitee;

(2) Licensee; or

(3) 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 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.

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:

(1) Expressed, such as through words like "please come in;"

(2) Implied from known customs or use of the premises; or

(3) 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.

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 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.

Trespassers

It is 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. 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.

A homeowner cannot lawfully prepare pitfalls or traps for a trespasser to injure the trespasser on purpose. 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. Check out the Attractive Nuisance Doctrine for related information about minor trespassers.

Owners have a duty to refrain from willful misconduct, including setting up boobytraps. 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 a manhole or get shot by automatic arrows while running through smoke to save victims.

For Indiana state law regarding the duty of care owed to a trespasser, including child trespassers, review the Indiana Code, Duty of Care Owed to Trespasser.

2024 Indiana Code
Title 34. Civil Law and Procedure
34-31-11-3. Duty of Care Owed to Trespasser; Child Trespasser

Sec. 3. (a) A possessor of land does not owe a duty of care to a trespasser, except to refrain from willfully or wantonly injuring the trespasser, after the trespasser has been discovered on real property possessed by the possessor of land.

(b) Notwithstanding subsection (a), a possessor of land may be subject to liability for physical injury or death to a child trespasser if all of the following apply:

(1) The structure or condition complained of is maintained or permitted on the property by the possessor.

(2) The structure or condition is particularly dangerous to children.

(3) The danger is latent, uncommon to nature, and unlikely to be comprehended by children.

(4) The structure or condition is particularly attractive to children and provides a special enticement for children to play or sport on the structure or condition.

(5) The possessor has actual or constructive knowledge of both the structure or condition and the likelihood that children will trespass and be injured.

(6) The injury is a natural, probable, and foreseeable result of the wrong.