What duty does a Possessor of Land owe to Guests or Trespassers?
“Generally, the status of an entrant on the land, i.e., whether the entrant is a trespasser, licensee, or an invitee, determines the specific duty of care owed by the possessor of land.” Medley v. Joyce Meyer Ministries, Inc., 460 S.W.3d 490 (Mo. App., 2015)(citing Adams v. Badgett, 114 S.W.3d 432, 436 (Mo.App.E.D.2003)).
How is Possessor defined?
A possessor of land is “a party ‘who is in occupation of the land with intent to control it.’” Medley v. Joyce Meyer Ministries, Inc., 460 S.W.3d 490 (Mo. App., 2015)(citing Restatement (Second) of Torts section 328E(a)).
Can a Tenant fall under the definition of “Possessor”?
Yes. According to the definition set forth in Restatement Second of Torts, “a non-owner of the premises may be a possessor.” Medley v. Joyce Meyer Ministries, Inc., 460 S.W.3d 490 (Mo. App., 2015).
What are the Classifications of an Entrant onto Real Property?
How is an Invitee defined in Missouri?
An invitee is a person “who enters the premises with the consent of the possessor for some purpose of real benefit or interest to the possessor or for the mutual benefit of both.” Adams v. Badgett, 114 S.W.3d 432 (Mo. App., 2003)(quoting Gillis v. Collins, 770 S.W.2d 503, 505 (Mo.App. W.D. 1989)).
“An entrant is also an invitee when the possessor extends an invitation to enter the land to the public generally or to some undefined portion of the public.” Adams v. Badgett, 114 S.W.3d 432 (Mo. App., 2003, fn 6).
Other definitions of Invitee that are persuasive in Missouri courts come from the Restatement (Second) of Torts:
“…Restatement (Second) of Torts section 332(3) (defining an invitee as “a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land”); Restatement (Second) of Torts section 332 cmt. e (stating that a person who enters a store to make a purchase is an invitee).” Medley v. Joyce Meyer Ministries, Inc., 460 S.W.3d 490 (Mo. App., 2015, fn 6)
When is a Possessor liable to an Invitee for Injuries Suffered on the Land?
“A possessor of land is liable for injuries suffered by an invitee due to a condition on the land if
|(1) the possessor “knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitee[ ]”;|
|(2) the possessor ‘should expect that [the invitee] will not discover or realize the danger, or will fail to protect [herself] against it’;|
|(3) the possessor ‘fails to exercise reasonable care to protect [the invitee] against the danger’; and|
|(4) ’[the] activity or condition on the land is [not] known or obvious to [the invitee], unless the possessor should anticipate the harm despite [the] knowledge or obviousness.’”|
Medley v. Joyce Meyer Ministries, Inc., 460 S.W.3d 490 (Mo. App., 2015)(citing Restatement (Second) of Torts sections 343 and 343A(1); Restatement (Second) of Torts section 343 cmt. a)(spacing added).
What Duties does a Possessor owe to an Invitee?
“[T]he general rule [is] that a landowner owes a duty to use reasonable and ordinary care to prevent injury to invitees.” Woodall v. Christian Hosp. NE-NW (Mo. App., 2015)(quoting State ex rel. Union Elec. Co. v. Dolan, 256 S.W.3d 77, 83 (Mo. banc 2008)).
“[A] possessor of land owes invitees “the duty to exercise reasonable care to protect them against both known dangers and those that would be revealed by inspection.” Adams v. Badgett, 114 S.W.3d 432, 438 (Mo. App., 2003).
How is Licensee defined in Missouri?
“A licensee is one who enters the premises with the permission of the possessor, but merely for his own purpose and interest, ‘from motives of curiosity or private convenience, in no way connected with the business or other relations with the owner.’” Adams v. Badgett, 114 S.W.3d 432, 437 (Mo. App., 2003)(quoting Gillis v. Collins, 770 S.W.2d 503, 505 (Mo.App. W.D. 1989)).
“A licensee enters the property with consent, but for his own purpose.” Hogate v. American Golf Corp., 97 S.W.3d 44, 47 (Mo. App., 2002).
What Duties does a Possessor owe to a Licensee?
“The possessor of land owes a licensee the duty to make safe dangers known to the possessor.” Adams v. Badgett, 114 S.W.3d 432, 438 (Mo. App., 2003)(emphasis added).
What is the difference between a Licensee and an Invitee in Missouri?
“Our Supreme Court has drawn the distinction between a licensee and an invitee—‘an entrant becomes an invitee when the possessor invites him with the expectation of a material benefit from the visit.’”
Adams v. Badgett, 114 S.W.3d 432 (Mo. App., 2003)(quoting Carter v. Kinney, 896 S.W.2d 926, 928 (Mo. banc 1995)).
How is a Trespasser defined in Missouri?
A trespasser is an individual who “enters  land without consent or privilege.” Hogate v. American Golf Corp., 97 S.W.3d 44, 47 (Mo. App., 2002).
What Duties does a Possessor owe to a Trespasser to Land?
Does a Possessor of Land ever Owe a Trespasser a Duty?
Yes. There are a number of exceptions where the possessor of land does owe a duty to a trespasser in Missouri.
The following are a few occasions when a possessor has a duty to a trespasser:
- “where the trespasser’s presence becomes known, a duty of reasonable care is owed” Humphrey v. Glenn, 167 S.W.3d 680, 683 (Mo. 2005).
- “a possessor of land owes a duty of care to child trespassers for a dangerous artificial condition he or she maintains at a place on the land that children are likely to trespass” Humphrey v. Glenn, 167 S.W.3d 680, 683 (Mo. 2005).
The possessor of land may be liable if s/he “created or maintained an artificial condition on land that was potentially dangerous” to any trespassers. Humphrey v. Glenn, 167 S.W.3d 680, 684–85 (Mo. 2005).
Additionally, the trespasser would have to prove the following elements for the possessor to be held liable:
(1) the possessor knew or should have known of constant trespass in the limited area where the condition existed;
(2) the possessor of the land knew the condition was likely to cause death or serious bodily harm to the trespasser; and
(3) the condition was of such a nature that the possessor had reason to believe the trespasser would not discover the hazard.
Is a Landowner Liable for Injuries on the Property during Construction?
“[C]ontrary to the general rule, a landowner does not owe a duty to invitees if the landowner relinquishes possession and control of the premises to an independent contractor during a period of construction.” Woodall v. Christian Hosp. NE-NW (Mo. App., 2015).
Why is the Landowner not Responsible for Injuries occurring during a Period of Construction?
“Under these circumstances, the landowner is no longer considered the possessor of the land and is therefore relieved of potential liability.” Woodall v. Christian Hosp. NE-NW (Mo. App., 2015).
Are there Circumstances Where the Landowner can still be liable for injuries during a Construction Period?
Yes, but “[t]he only way the landowner may be liable under [such] circumstances is if the injured employee demonstrates that the landowner retained possession and control of the premises, by establishing facts showing that landowner controlled the independent contractor’s work. Matteuzzi v. Columbus Partnership, L.P., 866 S.W.2d 128, 132 (Mo. banc 1993).
“[T]he [land]owner’s involvement in overseeing construction must be substantial[;] the control must go beyond securing compliance with the contracts; the [land]owner must be controlling the physical activities of the employees of the independent contractors or the details of the manner in which the work is done.” Id. (quotations omitted).
Is an Independent Contractor an Invitee or a Licensee?
This depends on the circumstances really, but the Missouri Supreme Court found in Matteuzzi that the employee of an independent contractor was considered an invitee. Matteuzzi v. Columbus Partnership, L.P., 866 S.W.2d 128, 132 (Mo. banc 1993).
The caveat is that the independent contractor has to have the landowner’s permission to be on the property or the entrant (independent contractor or its employee) may be classified as a trespasser instead. Id.