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3.9-3  Status of Parties - Licensee 

Revised to May 12, 2014  

A licensee is a person who is privileged to enter or remain on land only by virtue of the possessor's consent, that is, with the possessor's permission or with the possessor's express or implied consent.  A person who is a licensee has certain privileges that a trespasser does not have.  A possessor of land owes no duty to a licensee to keep the premises in a safe condition, because the licensee must take the premises as (he/she) finds them and assumes the risk of any danger arising out of an obvious condition.  When, then, is a possessor of land liable for injury sustained by a licensee? 

A possessor of land is subject to liability for injury to a licensee caused by a condition on the land if, but only if:

  1. the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensee, and should expect that (he/she) will not discover or realize the danger, and
  2. the possessor fails to exercise reasonable care to make the condition safe, or to warn the licensee of the condition and the risk involved, and
  3. the licensee does not know or have reason to know of the condition and the risk involved. [Caveat: see the concerns in the notes regarding the compatibility of the third prong with the abolition of the assumption of the risk doctrine and the adoption of comparative negligence.]

[<Insert if “reason to know” is at issue:>  A possessor of land has reason to know of a dangerous condition if (he/she/it) had factual information that would have led a person of reasonable intelligence to conclude that the condition was dangerous.  The possessor of land must already know this factual information; (he/she/it) does not owe a duty to a licensee to inspect the property to discover such factual information.] 

[<Insert if the condition is the result of active operations on the property:> If the possessor engages in active operations on the land, such as <insert alleged active operations>, there is a duty to exercise reasonable care for the protection of the licensee, that is, to act with due regard for the possibility that the licensee may be present.] 

Authority

See Salaman v. Waterbury, 246 Conn. 298, 305-308 (1998) (absent hidden hazards, no duty to warn adult swimmer about the dangers of drowning in an observable body of water); Derby v. Connecticut Light & Power Co., 167 Conn. 136, 142 (1974), cert. denied, 421 U.S. 931 (1975) (no duty when licensor has no actual or imputed knowledge of the dangerous condition); Corcoran v. Jacovino, 161 Conn. 462, 467 (1971) (duty to licensee); 1 Restatement (Second), Torts § 342 (1965).  See also Morin v. Bell Court Condominium Assn., Inc., 223 Conn. 323, 327-28 (1992), citing W. Prosser and W. Keeton, Torts (5th Ed.) § 60, p. 416 (duty re: active operations). 

Notes 

Police officers and firefighters who are on private property in the exercise of their duties are treated as licensees.  Furstein v. Hill, 218 Conn. 610, 615-16 (1991); Morin v. Bell Court Condominium Assn., Inc., supra, 223 Conn. 328. 

The Connecticut Supreme Court has consistently followed the Restatement of Torts § 342 for the duty owed by possessors of land to licensees, but the duty recognized in § 342 has changed over time.  In 1939, the Restatement (First) of Torts § 342 stated that a duty exists only where the possessor of land knows of the dangerous condition (“knows of the condition”).  In 1965, the Restatement (Second) of Torts § 342 broadened that duty to include circumstances where the possessor of land has reason to know of the dangerous condition (“knows or has reason to know of the condition”).   

The Restatement (Second) also added the third prong, whereby a possessor of land is not liable if the licensee knew or had reason to know of the dangerous condition and the risk involved.  Query whether the third prong runs afoul of Connecticut’s abolishment of the assumption of the risk doctrine and the adoption of comparative negligence. 

Since 1965, the Connecticut Supreme Court has cited to both versions of § 342, leaving it debatable as to whether it is following the Restatement (First) or the Restatement (Second).  Nevertheless, the committee believes that the court has adopted the Restatement (Second) version.  In the cases where the court cited to the Restatement (Second), the issue of knowledge of the dangerous condition was directly at issue on appeal.  Derby v. Connecticut Light & Power Co., supra, 167 Conn. 136; Furstein v. Hill, supra, 218 Conn. 610.  In contrast, in the three opinions citing to the Restatement (First), knowledge of the dangerous condition was not directly at issue, and only one of those cases, Salaman, was decided after the cases citing to the Restatement (Second).  Salaman v. Waterbury, supra, 246 Conn. 298; Corcoran v. Jacovino, supra, 161 Conn. 462; Dougherty v. Graham, 161 Conn. 248 (1971). 

A distinction exists between the phrases “reason to know” in this instruction and "should know" as used in Constructive Notice – Invitee, Instruction 3.9-13.  “Both the expression ‘reason to know’ and ‘should know’ are used with respect to existent facts. These two phrases, however, differ in that ‘reason to know’ implies no duty of knowledge on the part of the [defendant] whereas ‘should know’ implies that the [defendant] owes another the duty of ascertaining the fact in question.”  Furstein v. Hill, supra, 218 Conn. 610, 625-26 n.5, quoting 1 Restatement (Second), Torts § 12, comment (a) (1965).
 


 

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