There is a realm of tort law known as “premises liability law” that deals with harm caused to someone while/because they are on a property. It’s the idea that a landowner can be held liable for injuries other people suffer while on the property. It’s most relevant to real estate brokers in the context of open houses, but any time someone else is on your land, you run a varying level of risk that you’ll be held responsible for the other person’s injuries. The concept of premises liability law is based on a person occupying one of three statuses as a visitor on the property: (1) invitee, (2) licensee, and (3) trespasser.
1._Invitee – An invitee is a person who is specifically invited onto the property by the owner, expressly or impliedly, to enter the premises for a specific purpose. A person attending an open house would be an invitee. Oregon caselaw notes that the status as an “invitee” is determined by a property owner making it clear that they desire the invitee to be on their land. A sign on the door saying “open house, come in!” would be sufficient for that purpose as it implicitly/expressly invites the reader into the property. When you walk into a store, you are typically a business invitee because the store opens itself to the public with intent to have folks come in and do business. When land is held open to the public [e.g., open house], people who enter and remain on the land are known as public invitees.
- The possessor of the land [owner/seller] has a duty at law to discover conditions of the premises that create unreasonable risk of harm and either eliminate those conditions or warn foreseeable invitees to enable them to avoid the harm. Appleyard v. Port of Portland, 311 Or App 498 (2021). In other words, if you know that there’s a dropped step on a staircase that everyone falls on because it’s such a deviation from the height of other steps, you have a duty to warn all the people you invite onto your property about that step. Or to fix the step.
Caselaw in the 1980s modified the standard to be framed in terms of reasonable care, so an owner is not expected to go questing for faults on the property, but if a reasonable amount of care finds the danger, the owner must warn people. - Just a warning, an invitee may not be sufficient if there is a certain risk that cannot be avoided, even when the risk is known and appreciated. If, for example, there were two boardwalks over slick stones useable to reach a gazebo overlooking a pond, and one boardwalk was objectively dangerous and Seller put a piece of paper on it saying “take other boardwalk,” the warning alone may not be sufficient and law expects the Seller to have taken reasonable and feasible steps to remove the danger, such as by blocking off the dangerous path or destroying the dangerous part of the boardwalk.
- Owners are not held liable for unforeseeable harms, so if a buyer is walking in the back yard and a neighbor mowing their lawn hits a rock and it cracks the buyer over the head, that’s not going to inherently be a seller’s liability. Invitees are equally expected to use reasonable care to avoid harm that they know about or should have known about, so warnings are strong medicine against liability. At issue is ensuring the warning is understood and visible. If you put up a warning sign in fine, spidery cursive, a fair number of people will not be able to read it.
2. Licensee – a person who is on the land at the owner’s permission. The owner has consented to the presence, but the licensee has no right to demand that the land be safe for them and must look out for their own safety. Elliott v. Rogers Construction, Inc., 257 Or 421 (1971). Social guests are licensees in most cases, and though “invited” into the home, it is not a public invitation or a business reason for being present. The difference between an invitee and a licensee tends to turn on whether everyone is allowed to visit.
- The possessor of the premises will be liable for injuries that arise from their own “willful or wanton acts, and for gross negligence.” Ragnone v. Portland Schol District No. 1J, 291 Or 617 (1981). The possessor of the land also has to warn the licensee about any pitfall or trap the possessor knows about, and must exercise reasonable care to make the condition safe or warn the licensee about any unreasonable risks of physical harm on the property that the licensee would not have good reason to know was dangerous.
- Hence, a property owner would have a duty to inform their social guests and other people permitted to enter the property if, e.g., there was an unfinished deck that posed a concealed danger. Fitch v. Adler 51 Or App 845 (1981).
3. Trespasser – A trespasser is a “person who enters or remains on the premises without privilege to do so, created by possessor’s consent or otherwise.” Rich v. Tite-Knot Pine Mill, 245 Or 185 (1966).
- A property owner owes no duty to a trespasser other than to avoid injuring the trespasser willfully or wantonly. Towe v. Sacagawea, Inc., 357 Or 74 (2015). There are cases on the books about people creating spring gun traps in abandoned barns and outbuildings [where a gun is hooked up to a door to fire when the door is opened], and the property owner is responsible for injury to the trespasser in those situations. If your seller digs a tiger pit trap, and someone falls in it and gets hurt, the seller will be responsible for that injury.
- There is a special category of trespass called “attractive nuisance” that applies to trespasses by children. At law, we just generally assume that kids will trespass onto property, and injury to children for something that “the possessor knows or has reason to know that children are likely to trespass” to see will still impose liability on the property owner. Pools, heavy machinery, shiny lights, and fire escapes, all can be reasons that attract a child, and a property owner can find themselves liable for the harm caused to the trespassing child if they don’t secure the attractive items.
- A licensee or invitee can be rendered a trespasser if they are not permitted into a specific place. You may be an invitee at the restaurant, but you’re a trespasser when you wander into the kitchen. Sellers can use this to their advantage and protection if they mark off areas as off limits. If you have a dangerously unfinished garage, mark it as off limits and warn everyone at your open house. Once informed of the limitations of their permission, an invitee is no longer considered welcome in the off-limits location, and they only have the protection against wanton and willful injury [so no spring gun traps or tiger pits].