Occupiers Liability

the four types of entrants

trespasser

• entering without permission, and not just being tolerated

• duty of common humanity-

licensee

• on the premise with the occupiers permission

• not for a business service, only social

• standard of care is to take reasonable care to avoid foreseeable risk of harm from any unusual danger of which the occupier has actual knowledge because he was aware of the circumstances

invitee

• people who are on the premise with the occupiers permission

• derives from an economic advantage

• standard or care owed is use reasonable to prevent danage from an unusual danger that occupier knows or OUGHT to know of

• they have a duty to inspect

contractual entrants

• when an entrant enters the property under a contract, the standard of care owed is determined by the contact

who is an occupier

not based on ownership, but rather based on control over premeses

WHO CONTROLS THE PREMESES

Duty of common humanity- 5 factors to consider in determining occupier/trespasser liability

• gravity and likelihood of fanger and probable injury

• character of intrusion

• nature of the place where the trespass occured

• knowledge that the occupier had for the likelihood of the trespasser being present

• cost to the occupier of guarding against the danger relative to financial and other resources

Invitee test

was there an unusual danger

did the occupier know or ought to know of the unusual danger

did the occupier use reasonable care to rectify the danger

DEFENCE: did the entrant use reasonable care for his or her own safety

contractual entrants, the court will imply one of two terms

1. where the primep urpose is the use of the premises, there is an implied warranty the the premeise are safe for that purpose as a reasonable care and skill can make them

2. where the use of the premise is ancillary for the main purpose of the contract, the courts will imply ordinary negligence principle

test for occupiers liability

1. duty of care (who is the occupier)

2. standard of care (what type of entrant is present? based on the typed of entrant, what standard of care is owed?)

3. damages are material

4. causation

strict liabilities

• triggered by a simple breach of an obligation and doesn’t require proof of negligence

• vicarious liability is a form of strict liability

vicarious liability test

employer is liable to compensate persons for tots committed by an employee in the course of their employment

1. torts committe by employee

2. within the course of employment

vicarious liability policy reasons

ability to pay, AND fairness