284 / American Business Law Journal COURTS’ ABANDONMENT OF THE COMMON LAW CLASSIFI- CATION OF TRESPASSER, LICENSEE AND INVITEE It is a basic legal concept that one who is negligent will be liable for the injuries which he causes to others. The main basis of liability for unintentional torts is the law of negligence. This standard of conduct requires that persons live up to the ideal of a fictitious person labeled as a “reasonable man” for the protection of others.’ These ordinary principes of negligence do not govern the occupier’s liability to those entering his premises. An occupier of land owes a lesser duty to persons who are visiting his premises than he does to persons he comes into contact with elsewhere. The lesser duty is determined primarily by the common law classification of the visitors as either trespassers, licensees or invitees. This status classification sys- tem determines the duty awed by the land occupier or possessor.? The duty owed to trespassers and licensees is lesser than the ordinary principles of negli- gence. There is some question as to the legal and moral justification of a rule that varies the legal protection of a person’s life and limb upon whether he has come upon the land of another without permission or with permission but without a business purpose or for a business purpose. ‘Abrogation of the common law distinction of trespasser, licensee and invitee means discarding the law developed and applied by the courts over a period of many years. Courts have been reluctant to abandon the land occupier’s pre- ferred position set forth by history and precedent. The supreme courts of three states' have taken the brave step of replacing the outdated common law dis- tinction with ordinary principles of negligence to govern the occupier’s liability to those entering his premises. Before analyzing these decisions, an evaluation of the development and of the present common law concerning the duty of a land occupier would be appropriate. Historical Development The special rules regarding liability of the possesesor of land are due to his- 1 Prosser, Torts 145, 149 (4th ed. 1971) [hereinafter cited as Prosser). 2 RESTATEMENT (SECOND) OF Torts § 328 E (1965) (hereinafter cited as RESTATE- Mest] States: A possessor of land is (a) a person who is in occupation of the land with intent to control it; or (b) a person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it; or (c) a person who is entitled to immediate occupation of the land, if no other person is in possession under Clauses (a) and (b). + Rowland v. Christian, 70 Cal. Rptr. 97, 443 P.2d 561 (1968), Pickard v. City and County of Honolulu, $1 Hawaii 134, 452 P.2d 445 (1969) and Mile High Fence Com- pany v. Radovich, 489 P.2d 308 (Colo. 1971).Comment / 285 torical considerations stemming from the high place which land has tradition- ally held in English thought. The dominance and prestige of the landowning class in England existed during the formative period of the rules governing the possessor’s liability.‘ In this setting in the eighteenth and nineteenth cen- turies these rules limiting a landowner’s liability and establishing in him a uniquely privileged position were created. An owner of land was considered as the sovereign within his own boundaries and privileged to do what he pleased within this domain.* The unrestricted use of land was favored over human welfare. Individuals going upon the land of another were classified according to their relationship with the landowner and the duty of care varied toward such per- sons depending on their classification. These rigid and often arbitrary classifi- cations remain as part of the American common law even though England, who nurtured the common law rules, has rejected these distinctions.* Common Law Classifications A. TRESPASSER A trespasser is one who is on the land of another without the possessor’s consent;” he enters and remains on the premises without the privilege either expressed or implied being given by the occupier.* A licensee or invitee may become a trespasser when he ventures into an area where he is not invited or expected to venture.® The general rule is that a possessor of land is not liable to trespassers for physical harm caused by his failure to exercise reasonable care to make his land safe for their reception or to carry on his activities so as not to endanger them.’® The only duty that is owed to a trespasser by an occupier of land is to refrain from willful or wanton conduct, that is, unless the situation falls within one of the following exceptions. A duty of reasonable care is owed to an adult trespasser whose presence is actually discovered"? or who constantly intrudes on a limited area.*Reasonable care is also owed to the child trespasser whose presence should be foreseeable." 42 Harper « James, Te Law or Torts 1432 (1956) td. * Occupiers’ Liability Act, 5 & 6 Eliz. 2,c. 31 (1957) 7 Restatement, § 329. wis *Id. § 332. s 10 Td. § 333. Id. § 336, 337, 338. 12 Jd. § 334, 335. 3. Id. § 339.286 / American Business Law Journal B. LICENSEE One who is privileged to enter or remain upon land by virtue of the posses- sor’s implied or express consent is a licensee.’* A licensee must ordinarily accept the premises as he finds them and look out for his own welfare.'* The reason for this principle is that a land occupier cannot be expected to exercise a higher degree of care for the licensee than he would for himself. A possessor of land generally owes the licensee only the duty to refrain from willful or wanton con- duct as in the case of the trespasser. Because of the hardship sometimes re- sulting from this rule, courts have developed some exceptions. With respect to active operations, the possessor of land is subject to liability to licensees for in- jury caused for failure to exercise reasonable care for their safety.!® What might constitute activities dangerous to licensees will depend upon the court’s interpretation. Knowledge of the nature of the activities normally precludes recovery by the licensee. Generally, the possessor of land is under a duty to give warning of known dangers. C. INVITEE An invitee is classified as either a public invitee or a business visitor." A pub- lic invitee enters on land as a member of the public for the purpose for which the land is held open to the public.'* A business visitor is upon land for the purpose directly or indirectly connected with business dealings with the pos- sessor of the land.’* This is based on the reasoning that the possessor of the land owes a higher duty of care to the visitor from whom he expects to derive a pecuinary benefit. A social guest, who may be cordially invited or even strongly urged to come, is generally not an invitee® but categorized as a licensee.*! This classification has caused much disagreement and comment. An explanation often given is that since a social guest is considered an additional member of the host's fam- ily, preparation of the premises for his reception and precautions for his safety cannot be expected.”# Those who are classified as invitees are given the greatest protection by the courts. A landowner owes the invitee a duty to exercise ordinary care under the usual principles of negligence liability. This preferred status applies only to the area of invitation. 14 Id. § 330. 35 Prosser at 376. 16 Restatement, § 341. 3 Id. § 332. Id. wd. 20 Id. 21 Id. § 330. Id. 33 Prosser at 385.