Tort Duties of Landowners: A Positive Theory

21 Pages Posted: 7 Mar 2009 Last revised: 7 Apr 2009

Keith N. Hylton

Boston University - School of Law

Date Written: March 6, 2009

Abstract

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.

Keywords: torts, duty of landowners toward people who visit their land, invitees, licensees, trespassers, regulatory functions of landowner duties

JEL Classification: K00, K11, K13

Suggested Citation

Hylton, Keith N., Tort Duties of Landowners: A Positive Theory (March 6, 2009). Boston Univ. School of Law Working Paper No. 09-12. Available at SSRN: https://ssrn.com/abstract=1354610

Keith N. Hylton (Contact Author)

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
617-353-8959 (Phone)
617-353-3077 (Fax)

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