It’s that time of year again, the autumn leaves are starting to fall and Halloween is just around the corner.  Although the brilliant colors are striking and the costumed kids are adorable, you should be aware of the law of premises liability in Massachusetts before a preventable accident on your property causes personal injuries.  Following is a primer on the duty owed by landowners when entertaining visitors on their property.

At one time, the duty a landowner owed to someone on their property depended on the status of the visitor.  If the person was an “Invitee”, i.e., someone the landowner invited onto the property, the landowner owed that person a duty to maintain the property in reasonably safe condition, free from defects or hazardous conditions.  On the other hand, a person holding the status of “Licensee”, i.e., someone legally on the property but not at the invitation of the owner, was owed a duty to refrain from willful, wanton or reckless conduct by the owner.  Finally, someone who was a “Trespasser”, i.e., someone who has no legal right to be on your land, was owed no duty and was barred from recovery.

In 1973, the Massachusetts Supreme Judicial Court abandoned the distinctions between Invitee and Licensee in Mounsey v. Ellard, 363 Mass. 693 (1973). The Court held that as long as someone was lawfully on the premises, “a landowner must act as a reasonable [person] in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injuries to others, the seriousness of the injury, and the burden of avoiding the risk,” 363 Mass. at 708. In Schofield v. Merrill, 386 Mass. 244 (1982), the Court held that landowners could be liable to trespassers for injuries incurred on the landowner’s property but only if the landowner acted with willful, wanton or reckless disregard of the trespasser’s safety.

One exception to the duty, or absence of it, owed to trespassers is the “Attractive Nuisance” doctrine which applies when the trespasser is a child. M.G.L. c. 231, §85Q holds a landowner liable to foreseeable trespassing children when there is a condition on the land that has the potential of causing serious harm to the children but because of their age they can’t appreciate the danger. If the burden of eliminating the risk of harm is slight compared to the utility of maintaining the condition, the landowner can be held liable for failing to eliminate the danger or otherwise protecting the children from it.

Suppose you don’t own the property where you live but simply rent or lease it. The duty owed to lawful visitors depends on who controls the property and that may mean you, the landowner or both. Check your lease or renter’s agreement to determine what your responsibilities are concerning maintaining the premises in a safe condition.

Finally, in addition to maintaining the premises in a reasonably safe condition the landowner also owes a duty to warn lawful visitors of any dangers or defects on the premise that are unknown to the visitor but that the landowner knew or should have known about. For example, if a landowner knew a railing was weak or that a walkway had a defect that would cause a tripping hazard, not only would he be obligated to fix those problems but he would also have to warn about them before they were repaired.

SUGARMAN has extensive experience in cases like this and can help. Please fill out a Contact Form, call us at (617) 542-1000 or e-mail