OWNERS AND OCCUPIERS OF LAND

I. HISTORICAL INTRODUCTION

A. Landowner tort law historically:  The common law, up through the nineteenth century, was strongly influenced by the primarily agrarian and rural nature of both the English and American economies. These societies, being sparsely settled as they were, were able to nurture the view that an individual’s land was his to do with as he pleased. Consequently, a number of detailed, specialized rules arose concerning the duties of owners and occupiers of land towards other persons, both on and off the premises. These rules were not merely clarifications of what constituted “due care,” but were on the contrary rules sharply reducing the duties of landowners and occupiers, holding them to a standard of care markedly lower than that which, to our modern eyes, would be shown by the typical “reasonable person.”

1. About this chapter:  This chapter summarizes these various common law rules, and also shows the process whereby modern courts have liberalized and, in some cases, abandoned, these principles in favor of a more general duty of due care.

II. OUTSIDE THE PREMISES

A. Natural v. artificial conditions:  Whatever socio-economic reasons there have been for imposing a low standard of care upon landowners vis-à-vis persons upon their land, these reasons are less compelling when the landowner’s conduct has effects outside of his property. Landowners have therefore generally been held liable for conditions upon their land which pose an unreasonable risk to persons outside of it. See Rest. 2d, §§364, 365. There are, however, some exceptions to, as well as special clarifications of, this rule. The most important of these is the distinction between naturally existing hazards and artificially created ones.

1. Natural hazards:  Where a hazardous condition exists naturally upon the land, it has almost always been held that the property owner has no duty to remove it or guard against it, even if it poses an unreasonable danger of harm to persons outside the property. See Rest. 2d, §363(1).

Example:  A boulder sits at the edge of D’s property, adjacent to (and higher than) P’s property. (The boulder has naturally come to that position, without human intervention.) Even though it’s obvious to D for some time that the boulder might fall onto P’s property, he does nothing. In a strong windstorm, the boulder falls onto P’s house, damaging it. Under the traditional rule, D is not liable to P, because the hazardous condition existed naturally on the land, and D therefore had no duty to remove it or guard against it.