Was the Plaintiff an Invitee, Licensee or Trespasser?



Premises law is predicated on the litigant's presence on the premises in question. This litigant is called the "plaintiff" in legal terms. The property or premises owner is called the defendant for purposes of the premises liability lawsuit.

While a defendant is always a defendant, the plaintiff is not always a plaintiff in premises law. Depending on the defendant's legal duty to the plaintiff, the plaintiff is commonly titled in three different ways:

Licensee: A licensee was invited by the defendant to remain on or enter the premises in question for any non-commercial purpose. For example, a guest at a party is a licensee.

The owner of a premises is legally responsible for the damage incurred to a licensee if all three of the following circumstances are met:

* The defendant knew or should have known that a dangerous or damaging condition on the premises existed which involved an unreasonable risk of licensee harm, and did not have a reasonable expectation that the licensee would realize that danger to him/herself;

* The licensee did not know, could not have known, or did not have reason to know or realize that the condition and its associated risk(s) existed; and

* The owner did not exercise reasonable care in either rectifying the unsafe condition, or notifying the licensee of the condition and its associated risk(s).

* Invitee: An invitee is invited to remain on or enter the premises in question for commercial purposes, that is, for the defendant's personal gain or for a reason indirectly connected to the defendant's business or commercial dealings. For example, a patron of a business, such as a customer at a restaurant, is an invitee. A defendant owes his most stringent duty of care to an invitee as follows:

* The defendant has an obligation to protect or warn an invitee about his or her risks while on the premises if the risk is both unreasonable and the defendant realizes this.

In addition, the defendant may be obligated to periodically inspect the premises for hazards or dangers, such as a routine safety inspection in a store with high shelving.

Trespasser: A trespasser goes on the premises in question without permission of the defendant, not while performing any duty in relation to the premises owner. Defendants typically have no duty or limited duties to warn a trespasser of conditions or dangers that exist on the premises in question. However, a defendant premises owner may be obligated to exercise reasonable or ordinary care in warning a trespasser if he or she is aware that the trespasser is present on the property in question.

What About Contractors or Management Companies?

Non-Delegable Duties: It is typical for the duties of a premises owner to be non-delegable. That is, the presence of a contractor on the premises does not release the defendant from his or her liability in relation to those premises. For example, an apartment owner retains premises liability for that building, even if a management company or janitorial service actually does the repairs at the property.