Halloween is just around the corner, and hopefully you’re gearing up to decorate like a mad man. Now this author would be dishonest if they said they weren’t writing about Halloween decorations as an excuse to discuss premises liability; but it’s about property and not getting sued, so it’s still useful. With that admission out of the way, let’s set the stage. If you go big on Halloween, your decorations can range from static displays (a skeleton hanging from your roof, for example) to something more interactive (fake blood on the steps, a vampire in a coffin that pops out at you when the motion sensor is activated, etc.,) If you want to have an interactive display, knowledge of premises liability could be helpful.
Premises liability, in a nutshell, is the area of law that determines when a property owner is liable to another person for injuries sustained on their property. The law generally categorizes people on your property was 1 of 3 types: (1) trespasser; (2) invitee; and (3) licensee.
A trespasser is simply someone who enters another person’s property without right, invitation, or license. The law of trespass is very interesting, but that’s beyond the scope of this article. As a landowner, you don’t have any affirmative duties to keep trespassers safe, but you are prohibited from making the area unsafe for trespassers. For example, if you place small shards of glass on top of a wall to keep trespassers off your property, and a trespasser injures themselves while climbing the wall to trespass, you could be liable for the trespasser’s injuries. This a point that typically evokes a visceral reaction (remember Liar Liar where Jim Carrey’s secretary tells him the story about how a burglar fell through a skylight and injured himself on some knives?), but the general idea is indiscriminately harming anyone is conduct we want to prohibit – even if it means allowing people to trespass on your property. So don’t set up traps on your property, even if it is Halloween.
Unfortunately, people coming to your house on Halloween are unlikely to be trespassers ( there is an implied license to walk to the door, ring the doorbell, collect your candy, and be on your way).
A licensee is someone who enters another person’s property for their own purposes, curiosity, convenience, pleasure, or benefit with the owner’s permission (as noted above, your permission is implied on Halloween, unless you go to great lengths to make it clear you’re not participating; in which case, watch out for eggs and toilet paper). The majority of states have abolished the distinction between an invitee and a licensee, and impose an obligation on landowners to take reasonable care to keep people safe on your property (provided they’re allowed to be there in the first place). There aren’t any profound obligations to a licensee, but you do need to warn licensees of any known, concealed, dangers. Thus, that blood on your steps might constitute something you should warn people of (perhaps a sign at the front of your walkway cautioning that the stairs may be slippery). Invitees are owed the highest duty of care, this is because they are on your property for your benefit (you won’t have any invitees, social guests are licensees).
An invitee is someone who enters another person’s property for business that concerns that occupier and with their permission. For invitees, landowners have an affirmative duty to keep people on their property safe. This means they are not only obligated to warn of known dangers, but they must actively find unknown dangers and protect guests from them as well. The classic example is the slip-and-fall in a store case. This is why most grocery stores have people check, sweep, and mop the floors between the aisles on a regular basis, and notate every time they checked (the argument goes, if they checked every 15 minutes for new dangerous conditions, what else could they have done). Since trick-or-treaters are licensees, we don’t need to discuss invitees further.
At the Chernov Team we understand that knowledge is power, and knowledge of your legal obligations to trick-or-treaters is important information to have. At the Chernov Team we know that whoever comes to the table most prepared leave with the most, and the Chernov Team always leaves the table with the most.