According to The Law of Torts (Dan B. Dobbs), the common law rules regarding an entrant's status on the land grew out of an effort to displace the role of the jury. That theory is backed by the circumstances out of which these rules came to be. Over time, those jurisdictions that have maintained the rules have struggled to serve justice, often carving numerous exceptions in order to do so. This article provides a brief overview of the rules and their genesis, and an argument for their abolishment in Connecticut.
Massachusetts became the first U.S. state to adopt the common law rules which base the liability of a possessor of land on the status of the entrant. Sweeny v. Old Colony and Newport Railroad Co., 10 Allen 368 (1865). Twenty years later, Connecticut followed suit in Crogan v. Schiele, 53 Conn. 186 (1885). Citing Sweeny, the Crogan court noted that these rules trace their origin to feudal England, a place and time where owning land carried much prestige.
In this time period, it was presumed that one who owned land was powerful, dominant, and free to act as he pleased within the confines of his own property. However, property was held by very few elites and typically consisted of large estates. If you were injured in feudal England or early America, it was likely on someone else's property. Landowners became concerned that due to sheer numbers, juries would typically be made up of laborers who owned no property and harbored little sympathy for the wealthy landowners. Out of this concern grew the doctrine which limited the landowners' liability to those hurt upon their land. The rules distinguishing between trespassers, licensees, and invitees represent a departure from the fundamental rule of liability for negligence.
Under these rules, a trespasser, being unlawfully on the land, is owed no duty above refraining from willfully or wantonly injuring them. Licensees are those upon the land with a privilege do to so, but without an express invitation. The duty to licensees extends only to warning them of known defects that are otherwise not readily apparent and arises only once the licensees presence is known – beware Girl Scouts of America. Invitees are afforded the highest status under the old rules as a result of being expressly invited to enter the land. Invitees are owed a duty of reasonable care, just as is owed to others in nearly every other situation.
Throughout the beginning of the 20th century, many jurisdictions struggled to apply these rules in a fair manner, often carving out exceptions. The exceptions became so numerous that, when taken as a whole, they became substantially similar to a duty of reasonable care. This issue was not unique to the United States. In 1957, Britain passed the Occupier's Liability Act, which abolished the distinction between invitees and licensees in the country which was responsible for its origin. Despite frustration from some states, it wasn't until a signal from the U.S. Supreme Court in Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625 (1959), that the old rules began to break down in American courts. In Kermarec, the Court refused to apply the old rules to admiralty law, noting that "the distinctions…were inherited from a culture deeply rooted to the land…to a heritage of feudalism. In an effort to do justice in an industrialized urban society, with its complex economic an individual relationships, modern law courts have found it necessary to formulate increasingly subtle verbal refinements…the classifications and sub-classifications bred by the common law have produced confusion and conflict."
This decision created a duty of reasonable care in admiralty cases and signaled to state courts that it was time abandon status of an entrant upon the land.
Following the lead of SCOTUS, state courts began to abolish the common law rules in the late 1960s. California became the first to do so in Rowland v. Christian, 60 Cal.3d 108 (1968), noting that the old rules were "unrealistic, arbitrary, and inelastic." Further, Rowland noted that the essential goals of the tort system, to attach liability to bad acts and make those injured whole, bear nearly no relationship to the common law rules. "A man's life or limb does not become more or less worthy of protection by law nor a loss less worthy of compensation under the law because he has come upon the land of another without permission or with permission but without a business purpose." Following in California's footsteps, nine states applied a duty of reasonable care to all who entered the land over the next several years. Later, many more states abolished the distinction between licensees and invitees while maintaining special rules for trespassers.
To this day, Connecticut still clings to the archaic and largely abandoned common law distinctions between invitees, licensees, and trespassers. Our courts have at times struggled to apply these rules in a consistent way, and, as a result have created exceptions to the rules which blur the distinctions of status on the land. Applying Connecticut law to a railroad trestle case, the U.S. Court of Appeals for the Second Circuit in Eichelberg v. National Railroad Passenger Corp., 57 F.3d 1179, 1183 (2d Circuit 1995) noted that the common law rules in Connecticut have been "significantly less rigid" and "attenuated by significant exceptions".
In another railroad case, Lin v. National Railroad Passenger Corp., 277 Conn. 1 (2006), the court further confused the distinction by introducing the "misled invitee" and "continuous intruder" rule. The misled invitee rule holds that a trespasser may be treated as an invitee in cases where they are reasonably led to believe that the path they have taken is a public way. In Lin, the court found that a plaintiff who crossed a railroad bridge which was frequently used by the public as a means of access to crabbing grounds was not a "misled invitee." The court also denied the "constant intruder" doctrine on the basis that the railroad company only had an easement over the land, and that doctrine only applies when one intrudes on land over which the possessor has exclusive control.
Contrast that finding with Eichelberg, which reversed a summary judgment for the defendant railroad on the "position of peril" exception, which charges a landowner with a duty of reasonable care to avoid injuring trespassers once they find them in a "position of peril." In each of these cases, the plaintiff was crossing a railroad trestle and was hit by an oncoming train. The only significant factual difference between the two cases was in Eichelberg, the train sounded its horn. These courts struggled with the victims' status on the land when simply holding the defendants to the standard of a reasonable person under all the circumstances would be a more manageable test.
The concern over improper jury verdicts which, in part, drove the distinction of duty among entrants on the land can be easily addressed by the jury charge and/or the court's ability to grant summary judgment and/or enter directed verdicts. The "reasonable person under the circumstances" standard works in nearly every other facet of tort law and there is no reason why it should not be applied to landowner liability.
Whether the plaintiff is a Girl Scout selling cookies, a politician knocking on doors, or a process server attempting to effect service, justice should require some level of care. As the law currently stands, these individuals may be afforded little or no care, at least until their presence on the land is known. With an increasingly urban America where property lines can blur and property is entered every day by individuals who might not be considered "invitees," the time is ripe for Connecticut to recognize that there is no need for the archaic distinctions and to provide reasonable protections for citizens who enter the land in myriad circumstances. •