This content is intended to give a brief description of landowner liability. This article is not legal advice. People should seek professional help to discuss particular issue of concern to them.

Example

People are riding ATVs on property without permission. The landowner knows it, but has not yet identified the riders. The rain last week washed out a culvert and the landowner is aware of the problem, but has not had time to repair it. A rider was not able to stop in time and drove into the ditch where the culvert had been and was injured. Is the landowner liable?

Identifying the Theory

In this example, the first step to determine whether the landowner is liable is identifying the theory, or tort, the injured rider will use. In this case, the owner did not actively do anything so, the rider has to sue for something the owner did not do. That means they will probably use negligence as their tort. There are four elements that have to be proved to establish negligence:

• there was a duty owed
• a breach of that duty
• that the breach was the proximate cause of the injury
• damages

The outcome will normally depend on the duty the property owner owed to the rider, but all four elements must be proven.

Classification of Injured Person

Before answering the question of the duty owed, the classification of the injured person has to be established. There are three categories for individuals on someone’s property—trespassers, licensees, and invitees.

A trespasser is a person who enters or remains on the property of another without any right, lawful authority, or express or implied invitation, permission or license. You owe a duty not to wantonly or intentionally injure a trespasser. In other words, you cannot set a trap to injure a trespasser.

A licensee is a person who visits a landowner’s property with the landowner’s consent or as the landowner’s guest but with no business purpose. In addition to not wantonly or willfully injuring a licensee, you must also avoid negligently injuring the licensee after you discover a danger to the licensee.

An invitee is a person who enters the land with the landowner’s consent to bestow some material or commercial benefit upon the landowner. A landowner owes the invitee the duty to keep the premises in a reasonably safe condition and, if the premises are unsafe, to warn of hidden defects and dangers that are known to the landowner but that are hidden or unknown to the invitee.

The landowner is generally not liable if the individual, whether an invitee or trespasser, is aware of the danger. “As a general rule, an invitor will not be liable for injuries to an invitee resulting from a danger which was known to the invitee or should have been observed by the invitee in the exercise of reasonable care.” Quillen v. Quillen, 388 So. 2d 985 (Ala. 1980). “The invitee assumes all normal or ordinary risks attendant upon the use of the premises, and the owner or occupant is under no duty to reconstruct or alter the premises so as to obviate known and obvious dangers, nor is he liable for injury to an invitee resulting from a danger which was obvious or should have been observed in the exercise of reasonable care.” Marquis v. Marquis, 480 So.2d 1213 (Ala. 1985).

Is the Landowner Liable?

The ATV rider in the example is a trespasser. However, there is another class of trespassers called “known trespassers,” and the duty of care owed the known trespasser is higher. The landowner owes a duty to warn the known trespasser of dangers the landowner was aware of. In other words, if the landowner had not known the culvert was washed out, they would probably not be liable. However, since the landowner knew the culvert was washed out, they probably should have provided some warning, such as orange tape across the road. The landowner is not liable, however, if the trespasser should have observed the condition in the exercise of reasonable care (see the paragraph above which also applies to the trespasser).

As a former law school professor used to say, I can’t give you the answer until the jury comes back. “We have long been committed to the proposition that the plaintiff’s appreciation of the danger is, almost always, a question of fact for the determination of the jury.” Kingsberry Homes Corp. v. Ralston, 273 Ala. At 394, 140 So. 2d at 825.

*This is for information purposes only and is not a substitute for legal advice or recommendations.