Trespasser, Invitee, Licensee…Differences and Why They Matter

When I was a lawyer representing Fortune 500 retailers, apartment complexes, hotels, and other companies, they would always ask the same question when they got sued by someone injured on their property: “We didn’t do anything, the person just got hurt—why are we responsible?”

That question alone could be the subject of pages and pages of blog material. For the purposes of this article though, we will focus on the legal implications of three categories of people who visit a premises owned by someone else: invitees, licensees, and trespassers. Each is explained in turn below.

Invitees. An invitee is someone whom a premises owner or occupier, by express or implied invitation, induces or leads to come upon his premises for any lawful purpose.

Examples: a friend you invite to your house; customers of a store or restaurant; hotel guests; residents of apartment complexes, and their guests; someone attending a movie or sporting event.

General rule: a premises owner or occupier is liable to invitees who are injured by a condition (a spill on a floor; faulty stairs; criminal attack by a third party) if the premises owner/occupier either knew about the hazard, or should have known had they exercised reasonable care in inspecting and keeping the premises safe.

Exceptions: if the invitee knew about the hazard before he was injured, he cannot recover. Also, if the hazard was “open and obvious” (for example, large gaps in a stairwell railing which were plainly visible; or a large hole in the parking lot plainly visible in broad daylight), the invitee is barred from recovering. If the invitee had traversed the hazard before, he is presumed to have knowledge of it, and therefore cannot generally recover. If the invitee fails to exercise ordinary care for his own safety, he usually cannot recover—for example, making the decision to walk down a pitch-black stairwell when he cannot see what’s there.

Invitees comprise the broadest category of visitors to a premises, and have the best chance to obtain compensation for their injuries. This is because invitees are owed the highest legal duty by the premises owner/occupier, who must exercise reasonable care to discover and prevent hazards that could hurt invitees. This higher duty is owed because the premises owner/occupier derives some benefit or potential benefit from having the invitee on the premises: a customer to a store is there to potentially buy things from the premises owner; a friend visiting someone’s home provides companionship; an apartment tenant pays rent.

Licensees. A licensee, on the other hand, is someone who is allowed to be on the premises for his own benefit, and not to the benefit of the premises owner/occupier. The Georgia Court of Appeals has defined a licensee as “a person who is neither a customer, a servant, nor a trespasser, who does not stand in any contractual relation with the landowner, and who is permitted to go on the premises merely for her own interests, convenience, or gratification.”

Examples: Utility company who digs up your yard to work on a county water main; a friend who stops by unannounced and enters the house; someone who has the owner’s permission to go onto a property to hunt for free.

General rule: The premises owner or occupier is liable to a licensee injured by a hazard on the property only if the owner (a) knows or has reason to know of the hazard, and should realize that it involves an unreasonable risk of harm to the licensee, and should expect the licensee will not discover or realize the danger; and (b) fails to exercise reasonable care to make the condition safe or to warn the licensee of the condition and risk involved.

Therefore, a licensee has a higher standard to meet in order to recover for injuries than does an invitee. This is a logical rule: since the premises owner/occupier gains no benefit from the licensee’s use of the property, the owner/occupier should not be put to as great a burden to protect a licensee as he would to protect an invitee. To use an extreme hypothetical, consider a landowner who allows turkey hunters to use his property free of charge. Unbeknownst to the landowner, the property sits partially on an abandoned military artillery field. While looking for turkeys to shoot, one of the hunters trips and falls onto an old mortar round, and… BOOM.

Now, if the unfortunate hunter was an invitee, then he may have a valid legal claim against the owner (assuming he did not sign a waiver)—since the owner knew people would be hunting on the property, yet arguably failed to reasonably inspect the land for hazards. However, since the hunter was just a licensee and the owner did not know about the hazard, the owner in this scenario probably breached no legal duty sufficient to trigger a claim for injury.

Trespassers. This one is simple: someone with no permission or legal right to be on the premises.

Examples: a burglar; someone hunting on land without permission; someone playing after hours on a secured construction site.

General rule: a premises owner/occupier is not liable to a trespasser who gets injured on the property.

Exception: the premises owner/occupier can be liable if he kills or seriously injures the trespasser through willful and wanton conduct which is not justified (e.g. rigging up a shotgun to fire at the door if someone opens it; setting a booby trap to injure trespassers. Read this linked article for a story of one such “man trap” gone terribly wrong). Generally, a person is justified in using deadly force if he has a reasonable belief that the trespasser seeks to cause imminent bodily harm. A premises owner/occupier may not inflict serious bodily injury or death simply to protect property (e.g. no shotgun traps or booby traps).

You may have seen news stories like the one linked here about ungraceful burglars falling through ceilings or otherwise injuring themselves and then suing the store they were trying to burglarize. Those cases would not survive in a Georgia court, and rightly so. However, if a premises owner/occupier were to hide out and shoot at unsuspecting trespassers, or set a trap to injure them, then he has acted “willfully and wantonly”—and the thief is entitled to recover for his injuries. The logic here is that our law and society in general values life—yes, even the life of a burglar—over property. These “man traps” or “death traps” are less common in modern days with the widespread use of alternative measures to protect property (burglar alarms, HD security cameras, etc.). But in case you are considering any “Home Alone”-style booby traps, be warned that you can indeed be sued for them.