Tort Duties of Landowners: A Positive Theory

Authors

Keith N. Hylton, Boston University School of LawFollow

Author granted license

Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

Document Type

Article

Publication Date

2009

ISSN

0043-003X

Publisher

Wake Forest University School of Law

Language

en-US

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.

Comments

Updated with published version of paper on 9/24/22

Working paper available on SSRN

Recommended Citation

Keith N. Hylton, Tort Duties of Landowners: A Positive Theory , in 44 Wake Forest Law Review 1049 (2009).
Available at: https://scholarship.law.bu.edu/faculty_scholarship/779