A Capehart Scatchard Blog

Plaintiff, as Trespasser to Property, Owed Minimal Duty of Care by Landowner

By on August 10, 2018 in Liability with 0 Comments

The plaintiff injured himself when he tripped on an uncovered sewer drain in the parking lot of a doctor’s office across the street from his house. The plaintiff sued the owner of the property for his injuries, claiming the owner was negligent in failing to maintain the cover of the drain. The issue in Pisano v. AAS Realty Holdings, Inc., 2018 N.J. Super. Unpub. LEXIS 930 (App. Div. April 20, 2018) was how the plaintiff should be “classified” for purposes of determining landowner liability.

The incident occurred on a Sunday afternoon when the doctor’s office was closed. That afternoon, the plaintiff saw his son’s friend parked in the lot and walked across the street to say “hello.” When he was in the lot, he tripped on the opened drain, which the defendant property owner did not know was missing. After discovery, the defendant filed a motion for summary judgment, arguing the plaintiff was a trespasser and, therefore, it owed him a minimal duty of care. The only duty owed was to warn of artificial conditions on the property that posed a risk of death or serious bodily injury. The trial court granted the motion and the plaintiff appealed the dismissal.

The Appellate Division noted that the courts analyzed the duty the defendant-landowner owed the individual on his land based on the individual’s status – as an invitee, licensee or trespasser. The court determined that because the plaintiff had no connection to the doctor’s office, did not intend to visit the closed office and did not have the doctor’s office’s consent to enter the property, he was a trespasser. As a trespasser, the court found the defendant did not owe him a duty to warn of the missing grate of which it was not aware, nor did it knowingly create the condition caused by the missing drain cover. Further, because the plaintiff was not observant of his surroundings, the court determined his failure to see the missing grate did not place any liability on the defendant.

Furthermore, the court determined that when the three categories of individuals on the land of another are clearly defined, there is no need to resort to a more general analysis of other factors that would determine the nature of the duty owed to the occupier of the land. Such an analysis would look at other factors such as the relationship between the parties and the nature of the risk. However, when the individual’s status falls clearly within one of the three pre-determined categories, such as trespasser in this matter, the further analysis is unnecessary. Thus, the Appellate Division upheld the trial’s court’s decision to dismiss the complaint.


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About the Author

About the Author:

Mr. Holmgren is a shareholder in Capehart Scatchard's Litigation Department, focusing his practice in general defense litigation throughout the federal and state courts of New Jersey and Pennsylvania, with a concentration on premises liability, products liability, construction, estates, employment and professional malpractice. His clients include large and small business owners, municipalities and governmental entities, manufacturers, and their insurers.


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