March 27, 2002
TRESPASSERS, INVITEES, AND LICENSEES ON PRIVATE PROPERTY
By: Christopher Reinhart, Associate Attorney
You asked about the rights of a trespasser, invitee, or licensee on private property.
A possessor of land owes each person who enters his land a certain duty of care based on the person's status. The legal significance is that a possessor of land has the duty to an invitee to inspect the premises for hidden defects and to repair or erect safeguards, if necessary, to make the premises reasonably safe. He has no duty to inspect or to repair or erect safeguards for licensees. But he is liable if he knows of a condition, realizes it involves unreasonable risk, has reason to believe the licensee will not discover it, and he permits the licensee to enter or remain without warning or making the condition reasonably safe.
Generally, an owner owes trespassers no duty of care because he has no reason to expect them to be on his property. Therefore, he does not have to warn or protect them from potentially harmful conditions on the property.
However, an exception applies if a property owner knows, or has reason to anticipate, that children will trespass on his land. In this case, a special duty arises and the owner must take steps to protect children from any of the property's dangerous conditions. This can be done by taking reasonable steps to eliminate the condition or by otherwise keeping children away from it.
Statutes also provide criminal penalties and fines for trespassing in certain circumstances.
DUTY OWED TO TRESPASSER
In Connecticut, the following rules apply to a possessor of land with respect to a trespasser.
1. He may not intentionally harm the trespasser or lay a trap for him.
2. The trespasser is entitled to due care after his presence is actually known.
3. There is no duty owed regarding the condition of the premises.
4. The possessor of land has no duty to trespassers if he is engaged in a dangerous activity until the person's presence is know.
5. The possessor of land has no duty to warn trespassers of dangerous hidden conditions (Conn. Law of Torts, § 47).
Duty Owed to Trespassing Children
Connecticut's appellate courts have adopted the Restatement (Second) of Torts rule regarding the duty of a property owner to trespassing children (Duggan v. Esposito, 178 Conn. 156 (1979), Neal v. Shiels, Inc., 166 Conn. 3 (1974), Greene v. DiFazio, 148 Conn. 419 (1961), Wolfe v. Rehbein, 123 Conn. 110 (1937), Yeske v. Avon Old Farms School, Inc., 1 Conn. App. 195 (1984)).
Under this rule, if an owner knows or has reason to know that children will be on his property, he has the duty to protect them from injury by either fixing the harmful condition or ensuring that the children will not have access to that part of the property.
The rule states that a possessor of land is liable for harm to trespassing children caused by an artificial condition on the land if (1) the possessor knows or has reason to know that children are likely to trespass in that place, (2) the condition is one the possessor knows or has reason to know and should realize will involve an unreasonable risk of death or serious bodily harm to children, (3) the children because of their youth do not discover the condition or realize the risk, (4) the utility of maintaining the condition and the burden of eliminating the danger are slight compared with the risk to children involved, and (5) the possessor fails to exercise reasonable care to eliminate the danger or otherwise protect children (Restatement (Second), 2 Torts 339).
Trespass Crimes and Infractions
A person commits first degree criminal trespass when (1) he enters or remains in a building or any other premises after the owner or an authorized person personally communicates an order to leave or not enter and (2) he knows that he is not licensed or privileged to be there. This crime also applies to entering or remaining at a place in violation of a retraining or protective order. This is a class A misdemeanor punishable by up to one year in prison, a fine of up to $2,000, or both (CGS § 53a-107).
A person commits second degree criminal trespass when he enters or remains in a building knowing that he is not licensed or privileged to do so. This is a class B misdemeanor punishable by up to six months in prison, a fine of up to $1,000, or both (CGS § 53a-108).
A person commits third degree criminal trespass when, knowing he is not licensed or privileged to do so, he enters or remains in any premises for hunting, trapping, or fishing or enters or remains in premises that are posted in a manner prescribed by law or reasonably likely to come to the attention of intruders or that are fenced or enclosed to exclude intruders. This also applies to state lands near state institutions. This is a class C misdemeanor punishable by up to three months in prison, a fine of up to $500, or both (CGS § 53a-109).
It is a defense to these crimes if (1) the building was abandoned, (2) the premises at the time of entry were open to the public and the person complied with all lawful conditions on access and remaining on the premises, or (3) the person reasonably believed that the owner (or someone else with the power to do so) would have or did license him to enter or remain on the premises (CGS § 53a-110).
A person commits simple trespass if, knowing he is not licensed or privileged to do so, he enters premises without intent to harm any property. This is an infraction punishable by a fine, currently $77 plus
costs and fees if paid by mail (CGS § 53a-110a). A separate infraction covers trespass on railroad property when a person enters or remains on the property without lawful authority or consent of the railroad carrier. This is currently a $121 fine plus costs and fees if paid by mail (CGS § 53a-110d).
DUTY OWED TO A LICENSEE
A licensee is someone privileged to enter or remain on land because the possessor consents to it, either by invitation or permission (Salaman v. Waterbury, 246 Conn. 298 (1998)). In Connecticut, the following rules apply to a possessor of land with respect to licensees.
1. He may not intentionally harm the licensee or lay a trap for him.
2. The licensee is entitled to due care after his presence is actually or constructively known.
3. There is no liability owed to the licensee for the obvious condition of the premises but conditions that may be obvious in the daytime may become concealed at night.
4. The possessor of land has a duty to watch out for licensees or tolerated intruders if he is engaged in a dangerous activity.
5. The possessor of land must warn licensees and tolerated intruders of dangerous hidden hazards he actually knows about (Conn. Law of Torts, § 48).
An owner or occupier of land is subject to liability to a licensee for injuries sustained from a natural or artificial condition if he (1) knows of the condition, (2) realizes it involves an unreasonable risk, (3) has reason to believe the licensee will not discover the condition or risk, and (4) permits the licensee to enter or remain on the premises without exercising reasonable care to make the condition reasonably safe or warn the licensee of the condition and the risk (Laube v. Stevenson, 137 Conn. 469 (1951)). Certain statutes grant immunity, such as when land is made available for recreational use (see CGS § 52-557f et seq.).
DUTY OWED TO INVITEES
Invitees are generally people who come on land for a business purpose to the benefit of the land possessor or to the mutual benefit of the visitor and land possessor. The Connecticut Supreme Court described three types of invitees.
1. A public invitee is someone invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.
2. A business invitee is someone invited to enter or remain on land for a purpose directly or indirectly connected with business dealing with the possessor of land.
3. A social invitee is someone who is owed the same standard of care as a business invitee (CGS § 52-557a). The distinction between an invitee and a licensee depends largely on whether the visitor received an invitation, as opposed to permission, to enter or remain on the land. Although an invitation does not establish the status of an invitee, it is essential to it (Restatement (Second), 2 Torts § 332 Comment B, Corcoran v. Jacovino, 161 Conn. 462, (1971)).
The possessor of land owes an invitee all the duties that he owes to a licensee and also: (1) the duty to inspect the premises and erect safeguards, if necessary, to render the premises reasonably safe and (2) he has liability for defects that would ordinarily be discoverable by a reasonable inspection and he has the duty to give a proper warning. But he is not liable to anyone for unknown latent defects, that could not be discovered by the exercise of reasonable care (Conn. Law of Torts, § 49).
Even if he is an invitee, the plaintiff must prove that the defendant had notice, actual or constructive, of the specific defective condition that caused the injury, and that the condition existed for a sufficient length of time to allow the possessor, in the exercise of reasonable care, an opportunity to discover it and fix it or warn of its presence (Monahan v. Montgomery, 153 Conn. 386). The possessor of land is not liable for hazards that could not have been discovered or anticipated (Conn. Law of Torts, § 49).