Tort Duties of Landowners: A Positive Theory

One of the most controversial areas of modern tort law is that of the duty of landowners toward people who visit their land. The common law divided land visitors into three types: invitees, licensees, and trespassers. The highest duty of care was owed to the invitee and the lowest to the trespasser. The distinctions led courts to hand down harsh decisions and to draw formal lines between the categories that seemed to defy common sense at times. This paper explains the incentive-based function of the classical landowner duties. I will argue that the classical duties served useful regulatory functions. The most important was regulating the overall scale of injuries by imposing the risk of latent defective conditions in property to the party who is most likely to be aware of the risk or to take action to avoid the risk. ∗ Honorable Paul J. Liacos Professor Law, Boston University, [email protected]. This paper was prepared for the Wake Forest Law School conference on the Restatement (Third) of Torts. I thank Haoqing Zhang for research assistance.