An owner owes a minimal degree of care to a trespasser


Law Lessons from Negron v. Warriner’s Constr. Co., Inc., Law Div. (Geiger, J.S.C.), CUMBERLAND COUNTY, DOCKET NO. CUM-L-144-15, January 23, 2017:

An owner of an occupant of a commercial property has a duty to exercise reasonable care in maintaining its premises. See, e.g., Bohn v. Hudson & Manhattan R. Co., 16 N.J. 180, 185 (1954); see also Schamtterer v. Bamberger & Co., 81 N.J.L. 558, 561 (E & A. 1911).

At common law, a trespasser is a person who is on the property of another without invitation or permission. Snyder v. I. Jay Realty Co., 30 N.J. 303, 312 (1959). For trespassers, a landowner’s duty is “slight” and must only warn trespassers “of artificial conditions on the property that pose a risk of death or serious bodily harm to a trespasser.” Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434 (1993) (citing Renz v. Penn Cent. Corp., 87 N.J. 437 (1981); Restatement (Second) of Torts § 337 (1969). “To the social guest or licensee, the landowner owes a greater degree of care. Although the owner does not have a duty actually to discover latent defects when dealing with licensees, the owner must warn a social guest of any dangerous conditions of which the owner had actual knowledge.” Ibid (citing Berger v. Shapiro, 30 N.J. 89, 97-98 (1959)). For business invitees or guests, however, a landowner owes a duty of reasonable care to guard against “any dangerous conditions on his or her property that the owner either knows about or should have discovered. That standard of care encompasses the duty to conduct a reasonable inspection to discover latent dangerous conditions.” Ibid (citing Handleman v. Cox, 39 N.J. 95, 111, (1963)).

After recognizing that the owner owes a minimal degree of care to a trespasser who has no privilege to be on the land, the Court in Hopkins questioned whether it should resort to the common law doctrine of premises liability to determine the duty of care owed to the injured plaintiff. Hopkins, supra, 132 N.J. at 433-35. The court concluded that the common law doctrine governing premises liability was not immutable or inflexible, but, rather, adaptable to the requirements of society at the time of its application in court. Id. at 435. The Court fashioned a rule which employed considerations of public policy and fairness in determining the duty owed by a commercial landowner:

Resort to the common law methodology with its insistence on traditional classifications in this setting is not especially instructive and does not necessarily provide reliable guidance in determining the existence and scope of the duty of care that should be ascribed to a broker.
***
The inquiry should be not what common law classification or amalgam of classifications most closely characterizes the relationship of the parties, but, as exemplified by our decision in Butler, supra, whether in light of the actual relationship between the parties under all of the surrounding circumstances the imposition on the broker of a general duty to exercise reasonable care in preventing foreseeable harm to its open-house customers is fair and just. That approach is itself rooted in the philosophy of the common law. See Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, (1928); Heaven v. Pender, 11 Q.B.D. 503, 509 (C.A. 1883) (Brett, M.R.).

[Id. at 438.]

The Court declared that the following test should be applied in determining whether to impose a general duty to exercise reasonable care:

Whether a person owes a duty of reasonable care toward another turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy. Goldberg v. Housing Auth., 38 N.J. 578, 583 (1993). That inquiry involves identifying, weighing, and balancing several factors—the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution. Ibid. The analysis is both very fact-specific and principled; it must lead to solutions that properly and fairly resolve the specific case and generate intelligible and sensible rules to govern future conduct.

[Hopkins, 132 N.J. at 439.]

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