TTTBE #8: Early Answer for Patrons (Patreon)

The answer to the question was (A); that the landowner had a duty to warn.  Thomas got this correct, and is now 6-for-8 (75%) and on an amazing five-question winning streak.  Noah got this one wrong, and is also 6-for-8, dropping into a tie with Thomas for the lead.

This question was VERY tricky -- although not quite as tricky as next Friday's question.  Negliglence, as we have explained on the show on multiple occasions, requires that one violate a duty to others.  At common law, there is no "negligence in the air," meaning that you don't incur duties to strangers.  As a practical method, that means that the principle set forth in (C) is correct:  a property owner owes no duty to trespassers except not to act with wanton and willful disregard.  However, it is fairly well-settled at common law that when a property owner knows about a dangerous condition on his or her property, the owner must at least warn trespassers (and others) about it.

The most common wrong answer -- and this was a very common answer -- was "B", that the owner was strictly liable for the hazardous conditions on the property.  A lot of people, including Eric Brewer, thought that the issue was settled by premises liability.  Here's his answer, which is also quite funny:
 

One Halloween I was standing on my front lawn with my neighbor watching the shennanigans going on at the house across the street. My neighbor had been in the insurance industry for a long time... we watched as the fella across the street would jump out of the shadows and scare trick-or-treaters as they walked up his driveway. I told my neighbor I wouldn't be doing that kind of thing for fear of lawsuits... and he mostly agreed. Just then there was a scream and two girls ran across the street and through my front yard. They were running from what had just happened across the street... As they ran through my yard, I repeated out loud, "Please don't trip and fall and get hurt. Please don't trip and fall and get hurt. Please don't trip..." ...until they were safely out of my yard and into my other neighbor's yard. Then I said, "OK, you can fall and get hurt now." My insurance agent neighbor laughed and said, "I see you're familiar with premises liability." It is based on this experience that I choose Answer B.

What Eric and his insurance agent neighbor didn't know is that premises liability is not strict liability.  Instead, one typically owes a greater duty (and thus a higher standard of negligence) for each 'class' of visitors on one's property.  In my state of Maryland, for example, we recognize four classes of visitors one can have on one's property:  invitee, licensee, bare licensee, and trespasser.  Those are defined as follows:

• An invitee is someone you invite on to your property for business purposes, and you owe the highest duty of care to these individuals, which si to use reasonable acare to keep the premises safe and to protect the invitee from injuries caused by risks that the invitee may not discover on his or her own.  (This is why businesses purchase CGL policies to cover 'slip-and-fall' injuries on their premises.)

• A licensee is the next category down, and these are individuals whom you invite onto your property for social reasons.  To these people, you owe the duty to exercise reasonable care to warn the guest of dangerous conditions that the property owner is aware of, but that are not easily discoverable by the licensee.

• A bare licensee is a person who is on the premises with the owner’s permission, but solely for his or her own purposes, like our trick-or-treaters above.  The property owner owes no duty to a bare licensee except to refrain from willful or wanton misconduct that may injure the bare licensee, and to refrain from creating new sources of danger without providing warning to the licensee.

• Finally, a trespasser is a person who, without the property owner’s consent, intentionally enters upon the property. A property owner owes no duty to a trespasser except to refrain from willful or wanton misconduct that may injure or entrap the trespasser.

No one answered (D), which was a terrible answer and the only one you could safely eliminate.  ("A property owner owes no duties to trespassers.")  You may not set up spiked pit traps or other crazily dangerous things on your property in order to trap trespassers.

We hope you enjoyed playing along with TTTBE; there's more analysis forthcoming in Epsiode 39, and the super hard Question #9 will drop on Friday along with Episode 40!  Keep playing!