Occupiers’ liability determines the care that is owed by those persons who control land (occupiers) to visitors who enter onto that land. The most common case is that of a visitor who slips and falls because of a
dangerous defect on the premises. It might be assumed that the tort of negligence is adequate to the task of deciding the liability of an occupier of land. The relationship between an occupier and a visitor is a relationship of proximity, and the duty of care would appear to impose an appropriate standard of reasonable care in the circumstances. Negligence law, however, is not applicable in these situations. Occupiers’ liability continues to be a discrete area of tort law, albeit one that is increasingly indistinguishable from the tort of negligence.
The explanation for this state of affairs is that the rules of occupiers’ liability crystallized in the late nineteenth and early twentieth centuries before the generalizing and rationalizing influence of Donoghue v. Stevenson55made itself felt. The rules, which reflected Victorian attitudes to land ownership and civil liability for personal injury, proved to be remarkably resistant to the generalized duty of care and it was only in the latter part of the twentieth century that judicial activism in some provinces and statutory reform in others modernized what is known as the classical law of occupiers’ liability. A brief description of the classical law will be useful in understanding the language and concepts used in this area of tort law and the current state of occupiers’ liability.
By the early part of the twentieth century, the classical common law doctrine of occupiers’ liability, which continues to be the basis of occupiers’ liability law in those provinces without reforming legislation, could be stated, if not applied, with a great deal of confidence. This area of tort liability was marked off from the law of negligence by two concepts. First, it applied only to the occupier of land. The concept of occupier included not only those who had exclusive possession of land, such as owners in possession and lessees, but also those who had control of the land. Control provides the opportunity to be aware of dangerous conditions and the power to do something about them. Second, the rules of occupiers’ liability applied only to injuries arising from static defects in the premises. Liability for injuries caused by the occupier’s activities was controlled by the tort of negligence.
Within these boundaries the occupier’s liability was determined by a graduated standard of care tied to the status of the visitor who was injured. This approach called for the classification of the injured visitor as either a trespasser, a licensee, an invitee, or a contractual entrant, and for the application of the correlative standard of care. A trespasser
was defined as an entrant who had no express or implied permission to be on the land. The occupier owed no duty to make the premises safe for a trespasser. The only duty was not to intentionally or recklessly injure a trespasser whom the occupier knew to be on the land. A licensee was defined as a visitor who had express or implied permission to be on the land. The occupier’s duty was to prevent injury from hidden dangers of which the occupier had actual knowledge. If the occupier not only gave permission to the visitor but also had some economic interest in her presence, the visitor was an invitee. The classic example of the dichotomy between a licensee and an invitee is that between a social guest, in whom the occupier normally has no economic interest, and a customer in a retail store, in whom the occupier does have an economic interest. The standard of care owed to an invitee was substantially the same, in substance, if not in language, as the standard of reasonable care in negligence. The occupier was required to take reasonable care to prevent injuries caused by unusual dangers of which the occupier knew or ought to have known. The term contractual entrant referred to those visitors who entered into a contract, the primary purpose of which was to gain entry onto the land. It included, for example, those who paid to attend concerts and sporting events. In the absence of contractual terms to the contrary, the contract contained an implied warranty that the premises were as safe as reasonable care and skill could make them.
This classical scheme of responsibility faithfully reflected nineteenth-century judicial attitudes to land ownership and personal safety. Overall, it was protective of the occupier by maximizing his interest in freedom of land use at the expense of the visitor’s interest in personal security. It reflected the idea that obligations of care are primarily generated by contractual or pseudo-contractual relationships such as the invitor/invitee relationship. It also reflected the traditional common law dichotomy between misfeasance and nonfeasance. The low standard of care to licensees and trespassers was justified on the ground that the injury arose from the occupier’s failure to act rather than from his dangerous conduct. It also promoted...