OCCUPIER’S LIABILITY AND THE DUTIES LAID ON HIM

PROJECT OF TORTS

SUBMITTED TO – RAMESH KUMAR CHAMARTI

SUBMITTED BY - MRITUNJAY PATHAK

UG 2016-28

1ST SEMESTER (1ST YEAR)

B.A LLB (HONS)

MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR

1
 TABLE OF STATUTES

Occupier’s Liability Act 1957

8-11
Occupier’s Liability Act 1984
11-12

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 CONTENTS:
1. Table of cases……………………………………………………………………3
2. Introduction………………………………………………………………………4
3. Meaning of Nature of Torts……………………………………………………...5
4. Essentials of Torts……………………………………………………………….6-7
4.1. Wrongful Act……………………………………………………………......6
4.2. It must cause legal injury……………………………………………………6
4.3. Resulting Damages………………………………………………………….7
5. Remedy………………………………………………………………………......7
6. General Principle of liability…………………………………………………….8
7. Introduction to Occupier’s liability……………………………………………...8
8. Ingredients……………………………………………………………………….8
9. Common law before the occupier’s liability act 1957……………………………9
10. Scope of the occupier liability act 1957………………………………………….10
11. Premises………………………………………………………………………....10
12. Occupier…………………………………………………………….....................11
13. Visitor…………………………………………………………………….…….11
14. Implied Permission……………………………………………………………….13
15. Exceeding Permission…………………………………………………………….13
16. Young Children……………………………………………………………………14
17. Duty of care……………………………………………………………………….14
18. Applicability of common duty of care…………………………………………….15
19. Rules of Prescription and Acquires………………………………………………...15
20. Liability for owner of Dangerous Animals………………………………………...15
21. Cattles………………………………………………………………………………
15
22. Important Cases and their briefs…………………………………………………16-
18
22.1. Taylor v. oslon…………………………………………………………….16
22.2. Hayes v. Malkan……………………………………………………………16
22.3. Sheehan v. St. Paul Duluth Railway Co……………………………………16
22.4. Barmore v. Elmore………………………………………………………….16
22.5. Campbell v. Weathers……………………………………………………….17
22.6. Whelan v. Van Natta……………………………………………………….17
22.7. Wilk v. Georges…………………………………………………………....17
22.8. Pagelsdrof v. Safeco ins Co of America……………………………………17
23. Conclusion………………………………………………………………………….1
8

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 TABLE OF CASES

Anderson v. Coutts 13
Ashby v. White 7
Barmore v. Elmore 8
Boulton v. hardy 4
Bradlaugh v. Gossett 8
Campbell v. Weathers 7
Dodkins v. West Ham Utd 8
Edwards v. Ry Executive 13
Greenhalgh v. British Railway Boards 12
Hayes v. Malkan 11
Holden v. White 12
Indermaur v. dames 9
McGeown v. Northern Ireland Housing Executive 12
Page V. Read 11
Pagelsdrof v. Safeco Ins Co of America 6
Robert Addie & Sons 10
Robson v. Hallett
13
Soul v. W.J. Halt 10
Taylor v. Oslon 7
Wheat v. Lacon & Ltd 11
Whelan v. Van Natta
12
Wilk v. Georges 5
Winsmore v. Greenbank 6

INTRODUCTION
This is the branch of law that deals with actions for damages for injuries caused by a breach
of duty that is imposed by law. We as a human being do not live in isolation in this society.
We live amongst our fellow beings. So that we may live together in peace and harmony the
society imposes certain rules and regulations. We owe certain duties towards each other.

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There exists in other word a kind of chain where each of us owes a duty to another and at the
same time we have the right to expect that others will follow their duties. If either of us does
not follow this ‘fair’ conduct, we do a wrong against the other; in other words, we commit a
tort.
The law of torts is often considered the invisible policemen in the society and
punishes the wrongs which we do against each other and which are not of very serious nature.
The word ‘tort’ is derived from the Latin term ‘TORTUM’, which means twisted and
implies conduct which is tortious.1 Tort thus represents that conduct which is not ordinary but
one which deviates from the normal or the prescribed.
It means a breach of duty independent of contract giving rise to a civil action and for
which compensation is recoverable and that remuneration is in the form of unliquidated
damages. The one who commits a tort is know as tortfeasor or wrongdoer and his act is
known as tortious act.
This branch of law is still growing with a span of time and its concepts and
interpretations are evolving with new cases that are being filed in the court of law. Truly
speaking entire law of torts is founded and structured on morality that no one has the right to
injure or harm anybody intentionally or even incorrectly.2
The whole theory of torts revolves around the two concepts in general, i.e.….,
commission and omission. The omission is something that you were supposed to do, but you
failed to do. The commission is something that you were not supposed to do, but you
performed that act.
MEANING AND NATURE OF TORTS:
The law of torts is fabricated as “an instrument for making people aware of their rights and
duties and respect the interests of one another”.3 By “interests” here is meant “ a claim, want
or desire of a human being or group of human beings which the human being or group of
human beings seeks to satisfy, and of which, therefore, the ordering of human relations in
civilized society must take account”.4 It is impossible for us to take account of everyone’s
rights and duties and take action accordingly. The law, therefore, determines what interests
needs protection and it also holds the balance where there is a conflict of those interests. 5
That protection gives rise to legal rights and legal duties. An act which infringes someone’s
1
. The first reported use of the word tort is in Boulton v. hardy, (1597) Cro. Eliz 547,548.
2
. Definition given by Sahai.
3
. SETALVAD, Common Law in India, p.109.
4
. Pound Selected Essays, p.86: STREET, Torts, (6 th edition), p.3.
5
. For example, where the interest of the person defamed in his reputation is subordinated to the interest of
the person defaming in the exercise of freedom of speech on these occasions.

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legal right is a wrongful act. But every wrongful act is not a tort and that is why it has been
defined differently by different jurists. One of the most famous jurists, Dr. Winfield has made
a critical examination of many possible or current definitions and the one suggested by him is
as follows-

“The breach of duty primarily fixed by the law, where the duty is one towards a person
generally and its breach is repressible by an action for damages”.6

Pollock an English jurist, spoke as follows-

“The law of torts in civil wrongs is a collective name for the rules governing many species of
liability which although their subject matter is wide and varied have certain broad features
in common, enforced by the kind of legal process and are subject to similar exception”.

On closer examination you shall find that the common thread between all these definitions is
–
1. Violation of duty prescribed by law
2. Emphasis on it being a private and civil wrong
3. Compensation in the form of unliquidated damages.

Unliquidated damages in their simplest form denote damages which cannot be pre calculated
and ones which are not pre-determined, but ones which can only be awarded at the time when
tort has taken place.

ESSENTIALS OF TORT
1.1 A WRONGFUL ACT
The first part of a tort is committing a wrongful act to begin with. A wrongful act can happen
in two ways:
(A) COMMISSION: Such acts which are overtly done. e.g. When under treatment a
doctor gives the wrong medicine to the plaintiff.
(B) OMMISSION: Such acts which should have been done but the defendant fails to
do. e.g. When under treatment the Doctor fails to give medicines on time.

6
. Definition given by Dr. Winfield

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 1.2 IT MUST CAUSE LEGAL INJURY
The phrase injury refers to violation of a legal right or failure to do a legal duty. Legal injury
arises when someone’s legal right has been violated and the legal rights are given to the
citizens through the law that is prevailing in that particular country. e.g., if A deliberately hits
B on his head and later on he pleads no guilty before the court then the court shall hold him
liable for battery which is a punishable offence. 7 The real significance of legal damage is
illustrated by two maxims, namely injuria sine damno and damnum sine injuria.
By damnum is meant damage in the sense of money, health, or the like. By injuria is
meant a tortious act; whether it is intentional or not it doesn’t matter; for though it be
accidental, an action will lie.8

1.3 RESULTING DAMAGE

“Damage” means the harm or loss suffered or presumed to be suffered by a person as a result
of some wrongful act of another. The sum of money awarded by court to compensate
“damage” is called “damages”.
From the point of view of presumption of damage, rights are classified into two
categories and these categories are as follows-

(A) ABSOLUTE RIGHT- This particular right is actionable per se because when an
absolute right is violated the law presumes damage although the person wronged may
have suffered no pecuniary loss whatsoever.
In the leading case of Ashby v. White ,9 which is illustrative of violation of an
absolute right, the defendant , a returning officer , wrongfully refused to register a vote
of the plaintiff, a legally qualified voter, at a parliamentary election and the candidate for
whom the vote was tendered was elected and no loss was suffered by the rejection of the
vote . But later on it was held that the action will lie and the defendant shall be held
liable because he denied plaintiff to exercise his legal right.

7
7. Barmore v. Elmore (1980).
8
. Winsmore v. Greenbank. (1745) Willes 577 (581)

9
. Ashby v. White, (1703) 2 Ld. Raym. 938.

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(B) QUALIFIED RIGHT- In case of qualified right, there is no presumption of legal
damage and the violation of such rights is actionable only on proof of actual or special
damage. Example is defamation where in the aggrieved party has to show that his reputation
has been destroyed by the defendant.

REMEDY
The law of torts is said to be a development of the maxim ‘ubi jus ibi remedium’ (There is
no wrong without a remedy). ‘Jus’ signifies that there is ‘legal authority to do or demand
something’ and ‘Remedium’ may be defined to be ‘the right of action for the recovery or
assertion of right’. Human beings are designed in such a manner that they are full of needs
and desires and where there is a need then indeed there will be a conflict. Because of these
conflicts, the concept of rights has evolved and still it is evolving. Therefore, want of right
and want of remedy are reciprocal. 10 Sometimes this maxim has been interpreted in a wrong
manner where in it says that there is a legal remedy for every political or moral wrong. The
maxim means only that legal wrong and legal remedy are correlative terms; and it would be
more intelligibly and correctly stated, if it were reversed, so as to stand, “where there is no
legal remedy, there is no legal wrong”.11

GENERAL PRINCIPLE OF LIABILITY:

‘Liability in its literal sense means ‘The state of being legally responsible for something: the
state of being liable for something’.12
A tort is a legal term describing a violation where one person causes damage, to
another person. The violation may result from intentional actions, a breach of duty as in
negligence, or due to a violation of statutes.
The party that commits the tort is called the tortfeasor. A tortfeasor incurs tort
liability, meaning that they will have to reimburse the victim for the harm that they caused
them.13 In other words, the tortfeasor who is found to be “liable” or responsible for a person’s
injuries will likely be required to pay damages.
Under most Tort laws, the injury suffered by the plaintiff does not have to actually be
physical. A tortfeasor may be required to pay damages for other types of harm, including
10
. Per HOLT, C.J., Ashby v. white, (1703) 2 Ld. Raym 938 (953)
11
. Per STEPHEN, J., in Bradlaugh v. Gossett, (1884) 12 QBD 271(28)
12
. MERRIAM WEBSTER (ENG DICTIONARY)
13
13. Campbell v. Weathers 145 F.3d 1180.

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emotional distress or a violation of personal rights.
There are different types of liabilities under law of torts and one such type of liability
is occupier’s liability.

INTRODUCTION TO OCCUPIER’S LIABILITY

The greater part of this project concerns the liability of an occupier of premises for
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damage done to visitors on the premises and the main source of the law is the Occupier’s
Liability Act 1957. Where things done on the premises affect other premises, that is the
province of the law of nuisance which is a different tort altogether.
This section of law describes the duties imposed by the law of tort on occupiers in
relation to the maintenance and use of their premises. Occupiers have a duty to maintain the
premises safely for the benefit of third parties on or outside premises. The occupiers also
must ensure that the use of premises did not cause nuisance to other people. It is very
important for business organization to consider the tort liability for premises because business
premises visited often by large number of people every day and it will give a big impact to
the business occupiers. So, if the business occupiers receive a negative impact, the business
activities will definitely may be potentially hazardous.
INGREDIENTS
These are the essentials for making an occupier liable for breach of duty of care-
 The occupier owes a duty of care to the visitor.
 The duty is breached from a reasonable person’s perspective
 Consequential harm.

COMMON LAW BEFORE THE OCCUPIERS’ LIABILITY ACT 1957

At common law the duties of an occupier were cast into four different kind of categories and
a brief account is necessary to gain a full understanding of the Act.

 The highest degree of care was invested with the occupier to one who entered in
pursuance of a contact with him (for example a guest in a hotel): in that case there
was an implied warranty that the premises were as safe as reasonable care and skill
could make them.

14
. Dodkins v. West Ham Utd [2000] C.L.Y. 4226 Cty Ct (season ticket holder fell on broken manhole cover
outside gate to ground)

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  A lower duty was owed to the “invitee”, that is to say, a person who (without any
contract) entered on business of interest both to himself and the occupier (for example
a patron coming into a shop to view the wares)
He was entitled to expect that the occupier should prevent damage from unusual
danger of which he knew or ought to have known.15

 Then comes “licensee” for which the duty of care is still low. A person who entered
with the occupier’s express or implied permission but without any community of
interest with the occupier: the occupier’s duty towards him was to warn him of any
danger or trap of which he actually knew.

 Finally came the trespasser to whom under the original common law there was only a
duty to abstain from deliberate or reckless injury. 16

SCOPE OF THE OCCUPIERS’ LIABILITY ACT 1957

This particular act abolished the common law distinction between invitees and
licensees and substituted it with single common duty of care owed by the occupier to his
“visitors”. The definition of “occupier” remains the same as at common law, and “visitors”
are those persons who would at common law have been treated as either invitees or
licensee.17 The law therefore continues to treat contractual entrants as a separate categories. If
it is written in contract that it is the duty of the occupier to exercise duty of care toward its
visitors, then it is well and good but if it is not written then it shall be implied in the contract
that an occupier is ought to take such duty of care. 18 On the one hand , it is enacted that the
rules provided by the occupiers’ liability act shall have effect, in place of the rules of the
common law, to regulate the duty which an occupier of premises owes to visitors in respect
of dangers due to the state of the premises or to the things done or omitted to be done on
them.”19 On the other hand, it is also enacted that those rules, “shall regulate the nature of
duty imposed by law in consequence of person’s occupation or control of premises”, 20. This

15
. Indermaur v. dames (1866) L.R. 1 C.P. 274; affirmed (1867) L.R. 2 C.P. 311.
16
. Robert Addie & Sons (Collieries) Ltd v Dumbreck [1929] A.C.358
17
. 1957 Act s.1(2)
18
. 1957 Act s.5 (1) Maguire v. sefton MBC (2006) EWCA Civ 316; [2006] 1 W.L.R 2550. A Contractual entrant
may frame his claim in the alternative as a non contractual visitor, Sole v WJ Halt [1973] Q.B. 574.
19
. 1957 Act s.1 (1)
20
. 1957 Act s.1 (2)

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particular act maintains the balance between duty of care in negligence and common duty of
care.
PREMISES
 Premises are widely defined by the Act and cover not only buildings and open spaces
but also any fixed or moveable structure which include any vessel, vehicle or aircraft.
There are many examples of premises which have been discussed in the court of law
and some of them are given below-

 Firstly, staging, scaffolding and similar structures erected on land whether affixed to
the land or not.

 Secondly, poles, standards, pylons and wires used for the purpose of transmission of
electric power or communications or transportation of passengers, whether or not
they are used in conjunction with the supporting land.

 Thirdly, railway locomotives and railway cars; fourthly, ships, and lastly trailers used
for, or designed for use as, residences, shelters or offices.
OCCUPIER
Basically, occupier is a person who is in physical possession of premises or a person
who has responsibility for, and control over, the condition of premises, the activities
conducted on those premises and the persons allowed to enter those premises. The word
occupier is simply a convenient one to denote a person who has a sufficient degree of control
over premises to put him under a duty of care towards those who come lawfully upon the
premises.21The foundation of occupier’s liability is occupational control,22 i.e. control
associated with and arising from presence in and use of or activity in the premises. 23 Whether
this exists is a question of degree: a builder undertaking a large development would be an
occupier of the site, but a decorator painting a house would not.24 Such occupational control
may perfectly well be shared between two or more people, but where this is so, though each
is under the same common duty of care, it does not follow that what that duty requires of
each of them is necessarily itself the same.25

21
. Wheat v. Lacon & Ltd [1966] A.C.552 at 577 per Lord Denning.
22
. (Furmedge v. chester-le-street) DC [2011] EWHC 1226 (QB) AT [152]
23
. Wheat v. Lacon & Ltd [1966] A.C.552 at 589 per Lord Pearson
24
. Page V. Read (1984) N.L.J.723.
25
. Wheat v. Lacon & Ltd [1966] A.C.552 at 581, 585-586,587.

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 VISITORS
The common duty of care is owed by the occupier to his ‘visitors’ and they are those
persons who would at common law have been treated as invitees or licensees. 26 But after
some point of time this distinction was abolished. A visitor is generally a person to whom the
occupier has given express or implied permission to enter and the principal category opposed
to visitor is that of trespasser, whose rights are governed not by the act of 1957 but by
Occupiers’ Liability Act 1984.
The act of 1957 extends the concept of visitor to include persons who enter the
premises for any purpose in the exercise of a right conferred by law and whether or not they
have permission to enter the premises they would be treated as lawful visitor because they are
protected by law. The occupier therefore owes the common duty of care to firemen attending
a fire, to policemen executing a search warrant and to members of the public entering
recreation grounds under rights guaranteed by law.
It has been held that despite the wide wording of the act, a person using a public 27 or
private28 right of way is not a visitor for the purposes of the act. The user of the private right
of the way is now owed a duty under the occupiers liability under the Occupiers Liability Act
198429, but that decide, the owner of the highway30 or servient tenement has no obligation to
the user to maintain its safety, as opposed to not creating dangers on head. while it is true that
public rights of way pass over so many different type of property and in such varying
circumstances that any blanket duty of care will be impractical 31 the present state of the law
may lead to result which the public might consider arbitrary. For example the owner of the
shopping malls commonly take steps to ensure that the public do not acquire rights of way
through them, but if such a right is acquired by the user, 32 or by express dedication, and
trends to the property, who may know nothing of this, will loss the protection of the occupiers
liability which they formerly have, where as if they were outside on the pavement they would
be likely to have the protection of highway authority’s duty of care under the Highways Act
1980.33 Persons exercising access rights under the National Parks and Access to the

26
. 1957 Act s.1 (2)
27
.Greenhalgh v. British Railway Boards [1969] 2 Q.B. 286.
28
. Holden v. White [1982] Q.B. 679.
29
. Occupiers Liability Act 1984`
30
.McGeown v. Northern Ireland Housing Executive [1995] 1 A.C. 233. A highway authority may have a duty to
maintain a highway under the Highways Act 1980: para.15-073.
31
. Lord Keith in McGeown’s case at [1995] 1 A.C. 243.
32
. As in Cumbernauld and Kilsyth DC v. Dollar Land(Cumbernauld) Ltd 1993 S.L.T. 1318.

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Countryside Act 1949 or the Countryside and Rights of Way Act 2000 are not visitors but a
duty is owned to them under the Act of 1984.34
IMPLIED PERMISSION:
Where there is no express permission, it is a question of fact in each case whether the
occupier has given permission to a person to enter upon his premises, and the onus of proving
an implied permission rests upon the person who claims that it existed. 35 Any person who
enters the occupier’s premises for the purpose of communicating with him will be treated a
having the occupier’s permission unless he knows or ought to know that he has been
forbidden to enter36 by a notice.37 The occupier may, of course, withdraw this license by
refusing to speak or deal with the entrant, but if he does so the entrant may have time in
which to leave the premises before he becomes a trespasser. 38 This particular concept is very
hard to state any general rule and the trespasser’s position has now been improved and it is
likely that implied permission will be rather less readily found
But the courts will still have to grapple with the problem of the implied license, for
the duty owed to a trespasser is by no means identical with that owed to a visitor under the
Occupiers’ Liability Act 1957.
EXCEEDING PERMISSION:
The duty owed to a visitor does not extend to anyone who is injured by going where
he is expressly or impliedly warned by the occupier not to go, as where a person falls over a
cliff by getting on the wrong side of railings erected by the proprietor who has also put up a
notice of the danger of going near the cliff39.
Further, the duty does not protect a visitor who goes to a part of the premises where
no one would reasonably expect him to go. Where, however, the negligence of the occupier
causes the visitor to take an involuntary step outside the area in which he is permitted to be,
he does not thereby cease to be a visitor to whom a duty of care is owed, and the position is
probably the same even if the involuntary step is not caused by the occupiers’ negligence.
YOUNG CHILDREN:
33
. See Lord Browne-Wilkinson McGeown v. Northern Ireland Housing Executive [1995] 1 A.C. 233. See
generally Barker and Parry (1995) 15 L.S. 335.
34
. Act of 1984
35
. Edwards v. Ry Executive [1952] A.C. 737.
36
. Robson v. Hallett [1967] 2 Q.B. 393. Cf. Dunster v. Abbott [1954] 1 W.L.R. 58 at 59-60 per Denning LJ and
Great Central Ry V. Bates [1921] 3 K.B. 578.
37
. For example, “no canvassers, hawker or circulars”. Quaere as to the effect of “Private” or “Keep Out” in such
cases: cf. Christian v. Johanesson [1956] N.Z.L.R. 664 at 666.
38
. Robson v. Hallett [1967] 2 Q.B. 393; Kay v. Hibbert [1977] Crim.L.R. 226. Dismissive words may sometimes
be abuse rather than revocation of the licence: Snook v. Mannion [1982] Crim. L.R. 601.
39
. Anderson v. Coutts (1894) 58 J.P. 369.

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 The common duty of care, like the common law before it, requires that the occupier
must be prepared for children to be less careful than adults 40 but the special characteristics of
children may be relevant also to the question of whether they enjoy the status of visitor. In
41
Glasgow Corp v Taylor it was alleged that a child aged seven had died from eating
poisonous berries which he had picked from a shrub in some public gardens under the control
of the corporation. The berries looked like cherries or large blackcurrants and were of a very
tempting appearance to children. They thus constituted an ‘allurement’ to the child. The
corporation was aware of their poisonous nature, but the shrub was not properly fenced from
the public nor was its warning given to them anywhere. It was held that these facts give good
cause for an action. Certainly the child had no right to take the berries nor even to approach
the bush, and an adult doing the same thing might well have become a trespasser, but since
the object was ‘allurement’ the very fact that it was left there constituted a breach of the
occupier’s duty. So in determining whether the occupier has fulfilled his duty to them there
must be taken into account his reasonable expectations of the habits of prudent parents in
relation to their children’s.
DUTY OF CARE:
The occupier of premises owes a duty to take that care that in all the circumstances of
the case is reasonable to see that a person, and the person's property, on the premises, and
property on the premises of a person, whether or not that person personally enters on the
premises, will be reasonably safe in using the premises. The occupiers of the premise must
concern about the visitors for example the safety of the visitors. It is need to be considered as
the occupiers noticed that the duty of care is limited to taking reasonable care to ensure
reasonable safety and only for the purpose of that visit. It means that, the occupiers consent to
a visitor's presence is limited by the purpose of the visit.
APPLICABILITY OF COMMON DUTY OF CARE:
The common duty of care is applied when there is a relation to:
(1) The condition of the premises
(2) Activities on the premises
(3) The conduct of third parties on the premises.

RULES OF PRESCRIPTION AND ACQUIESCES:

40
. 1957 Act s.2(3)(a). See para. 10-016.
41
. [1922] 1 A.C. 44.

14
Prescription, we studied in nuisance, is the rule where a person not having the right acquires a
right adversely by continuing to exercise it. When a person habitually tolerates the trespass
by another or comes to know and does not object he is said to have acquiesced the trespass
and the trespasser assumes the same rights as held by a lawful visitor.
LIABILITY FOR OWNERS OF DANGEROUS ANIMALS:
An animal held as a pet is considered a property in the eyes of law. A person is
responsible as a trespasser if his animal goes into the property of another and is also
responsible for the damage it may cause. On the other side when a visitor comes to a property
the occupier is liable if that animal causes injury to the visitor.
These general rule are subject to qualification to the special rules which govern and
distinguish liability for dangerous vis-à-vis non dangerous animals.
CATTLE:
Cattle is a different category all together. The oxford dictionary defines it as “a large
ruminant animal with horns and cloven hooves e.g. cows, bison and buffalo. The natural
habits of cattle are stray and forage for food. For this reason, they often tend to destroy crops
or agriculture and therefore the owner is strictly liable if they are causing damage.

COMMENTARIES

TAYLOR V. OSLEN (1978)

Facts: Taylor was injured when her car struck a tree that had fallen from Olsen’s property
onto a public road.
Issue: Is the level of care a possessor of land must use to prevent an unreasonable risk of
harm different for urban and rural dwellers?
Rule: A possessor of land must exercise reasonable care, given the circumstances of the
individual case, to prevent an unreasonable risk of harm. This applies whether they are urban
or rural dwellers.
Note: This case rejects the traditional urban/rural distinction still followed by a majority of
jurisdictions.

HAYES V. MALKAN (1970)

Acts: Hayes was injured when the car he was in crashed into the defendant’s utility pole,
located on private property near a public road.
Issue: Do landowners have a duty to protect those who use public lands from an

15
unreasonable risk on their property if the object of risk is located near the public land?
Rule: Landowners owe no duty to protect persons on public lands from an unreasonable risk
located on their property regardless of the risk’s proximity to the public land.

SHEEHAN V. ST. PAUL DULUTH RAILWAY CO. (1896)

Facts: While walking on the defendant’s railway track, Sheehan’s foot became caught in the
rail and was severed by a passing train.
Issue: Do landowners owe duties of care to undiscovered trespassers?
Rule: Landowners owe no duty of care to trespassers whose presence is unknown to them.

BARMORE V. ELMORE (1980)

Facts: Barmore went to Elmore’s home to discuss lodge business. While there he was
attacked by Elmore’s son, who had a history of mental illness.
Issue: Is a guest who is present for the purpose of conducting mutual business with a host
considered to be an invitee or a licensee?
Rule: When a person is a guest in another’s home to conduct mutual business, the host does
not receive any personal benefit and the guest is considered a licensee. With licensees, a host
only has a duty to warn of known dangers.
Note: A host has a duty to exercise reasonable care in keeping the premises reasonably safe
for use by an invitee.

CAMPBELL V. WEATHERS (1941)

Facts: The plaintiff, a frequent customer at the defendant’s lunch counter, was injured on a
day the plaintiff did not make a purchase.
Issue: Is one who enters a place of business, but has no intention of conducting business that
day, considered a licensee or an invitee?
Rule: One who enters a place of business with an intention to do business then, or at some
future time, is considered an invitee.

WHELAN V. VAN NATTA (1964)

Facts: After the plaintiff purchased cigarettes at the defendant’s grocery store he asked if he
could have an empty box. Directed to the back room, the plaintiff fell down an unseen
stairwell.

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Issue: Do visitors lose their status as invitees when they move beyond the scope of their
invitation?
Rule: Visitors have the status of invitees only while on the part of the land to which their
invitation extends. When they move beyond this area, invitee become trespassers or
licensees, depending on whether they have the owner’s consent.

WILK V. GEORGES (1973)

Facts: The plaintiff slipped and fell while shopping in the defendant’s store. The defendant
had posted signs warning the floor was slippery.
Issue: Is a landowner’s duty to protect invitees from an unreasonable risk of harm discharged
by the posting of warning signs?
Rule: When a possessor of land can anticipate an unreasonable risk of harm to an invitee, the
possessor must take reasonable care of such a risk beyond the mere posting of warning signs.

PAGELSDORF V. SAFECO INS. CO. OF AMERICA (1979)

Facts: While helping a tenant in the defendant’s building the plaintiff was injured when a
wood railing of a balcony collapsed.
Issue: Do landlords owe a duty of care toward tenants and their visitors in maintaining the
premises?
Rule: Landlords must exercise ordinary care toward their tenants and others on the premises
with permission.
CONCLUSION:
This area of law of torts emphasizes more on duty of care that an occupier owes towards its
visitors whether that is an invitee or a licensee. The principles on which it is mainly based is
morality because morality says that one should take care of everyone around and do not
breach the duty. We can conclude that reasonable precautions should be taken for trespassers
even though they are not lawful visitors under the Occupiers’ Liability Act 1957 and
Occupiers’ Liability Act 1984. Although they must have entered the premises illegally, still
the owner of the land owes a reasonable duty of care or the duty of common humanity
towards them. All reasonable precautions should be taken to see that the trespasser does not
suffer injury on the premises and steps should be taken to give reasonable warning of the
danger concerned or to discourage people from incurring the risk.

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