By: John N. Shanks and Lisa T. Hamilton

As landowners we are all concerned what could happen if someone was injured on our property. Landowner liability is not an easy issue and has become less clear over time.

Generally speaking, the duty of an owner or occupant of land to a person injured depends to some extent on whether the person was on the property as a trespasser, as a licensee by permission or passive acquiescence only, or a licensee by the inducement or invitation, of the owner or occupant.

Negligence is a major part of the liability issue. Negligence has been defined as a failure to exercise that degree of care which a person of ordinary prudence would exercise under like circumstances or as conduct which creates an undue risk of harm to others.

These duties do not take on much meaning until the landowner can classify persons using the property. In making this determination, there are several Indiana cases which provide guidance and one recent Illinois Supreme Court case which may become important by virtue of the fact that the United States Supreme Court declined to review it.

In Burrell v. Meads (1991), the Indiana Supreme Court held both public invitees (people 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) and business visitors (people invited to enter or remain on the land for a purpose directly or indirectly connected with business dealings with the possessor of the land qualify as "invitees." Social guests, specifically, are considered invitees, and thus entitled to a duty of reasonable care.

The Burrell case arose when a friend was helping the landowner install a drop ceiling in the landowner's garage. In preparing for the job, the friend fell off the rafters and onto the garage floor suffering several injuries. In reversing traditional common law, the Court noted that modern social practices do not conform with the rationale given for considering social guests as for business guests. Social guests, like any other invited entrant, are led to believe that the land has been repaired for their safety. The Court concluded that social guests are invitees and entitled to a duty of reasonable care from landowners.

In Jump v. Bank of Versailles, (1992), an employee of a tenant of the adjacent landowner was injured while attempting to descend an icy set of steps. The steps were used to get from the back parking lot to an alleyway leading to entrances for buildings on either side of the alley.

The Court, in classifying the plaintiff, looked to the definitions of 'invitee" adopted by the Supreme Court in Burrell. Although the plaintiff was a customer of the Bank, her admitted purpose in using the stairs was to enter her place of business. This purpose was not directly or indirectly related with the business dealings of the landowner, Bank. She, therefore, could not meet the definition of "business invitee."

On the other hand, the plaintiff was found to have been a public invitee when she fell down the stairs and at no time did the bank post signs restricting the use of the stairs or forbidding trespassers. Further, the Bank admitted they maintained the stairs to provide a safe way to get through the alley. The Court found these factors established a general and broad invitation to include all pedestrians using the steps and passageway, whether or not intending to transact business with the Bank.

In a disturbing 1992 case, the Illinois Supreme Court, and the United States Supreme Court, by refusing to review the decision, may have made a change in negligence liability to trespassers around the country. The court upheld an award for the estate of a trespasser above the traditional landowners' duty to refrain willful and wanton conduct.

Sang Yeul Lee was killed when he came in contact with a "third rail" which powers the Chicago Transit Authority (CTA) trains. Lee had become intoxicated, to the "stupor" stage, at a party and while returning home, stopped to relieve himself. Lee chose a CTA right-of-way where the trains pass at street-level. Despite five signs warning of "danger" and "electric current", Lee entered and came into contact with the rail carrying 600 volts of electricity. He died.

There was no dispute that Lee was a trespasser. While noting that the established common law duty owed to trespassers is merely to refrain from willful or wanton action endangering the trespasser, the Court felt that modern society mandated a change.

The Court adopted the notion that a landowner who maintains an artificial condition on the land, which involves a risk of death or serious bodily harm, is subject to liability bodily harm caused to trespassers if:

(a) the landowner knows or has reason to know of their presence in dangerous proximity to the condition; and

(b) the condition is such a nature that he has reason to believe a trespasser will not discover it or realize the risk involved.

The Illinois decision creates greater concern for the landowner, because the CTA had posted warnings. Throughout its decision, the Illinois Supreme Court leaves the landowner wondering how much warning is sufficient. Indiana courts have not ruled on such a case. But, because the United States Supreme Court refused to review Lee and resolve the conflict among the several jurisdictions, it is possible that a higher duty to trespassers may be adopted in Indiana courts. This would lead to much litigation in Indiana in an effort to determine how far a landowner must go to maintain property that would not render them liable to an unfortunate trespasser who is injured.

The ownership of land is a cherished right most Americans regard as sacred. Although it has its joys, the threat of suit by a trespasser lingers like a dark cloud and the rationale of the courts often defies conventional logic.

With few clear standards for guidance, the landowner must look for indemnification through good insurance and be alert to situations on their property which may give rise to liability action.

There is no fence too high nor stream to broad to keep out trespassers. They are simply an ever present thorn with which we must live.