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:
- 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
- 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
- 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
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).
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
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 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,
“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).