California’s Negligence Standard and the Trichotomy

California in Rowland v. Christian 443 P.2d 561 (Cal. 1968), has in effect done away with the trichotomy of Invitee, Licensee and Trespasser as determinative of defendant’s liability for people on a defendant’s property.

To put it simply, if you own property and someone enters upon your land, it’s irrelevant whether you are there without the owner’s permission. The trend away from the common law distinctions of invitee, licensee and trespasser is quite disturbing and appears to move towards the philosophy of affirmative rights our system is becoming more and more obsessed with.

I can understand perhaps doing away with the distinction between invitee and licensee as many states have done. Both licensees and invitees are on your land with your permission and should be accorded the same level of care and protection. As in Rowland, the common law rules of negligence should apply as opposed to the fine gradations between whether a person is a business visitor, personal guest or suffered passerby. I disagree entirely, however with Rowland, in making that same obligation extend to trespassers, who should be given no guarantees and have no protection extended to them against either patent or latent dangers.

The point is this: My knowledge of the dangers on my land is itself a property right. (see Anthony Kronman’s Mistake, Disclosure, Information and the Law of Contracts J. Legal Stud. 1 (1978)). So, when I invite or suffer a third party to come on my land, it is implied that among the bundle of rights I am offering to the licensee or invitee is not only the temporary right to be on my property but also the implied property right to the knowledge of any latent dangers they may encounter.

However, a trespasser has been given no such property right. To demand that I tell the trespasser of any inherent dangers, whether manmade or natural, is a forced conversion by the government of my property right.

For example, I have a concealed ditch on my land full of icy water. This ditch is on the entranceway to my land and must be crossed to go any further. If I invite you or allow you onto my land, it can reasonably be implied that I have a legal obligation to warn you about that ditch.

However, if I see you on my land, I tell you not to enter, and you do anyway, do I have an obligation to warn you of the ditch? I know you are going to be harmed by falling in the ditch, but I do nothing. The court in Buch v. Amory would likely rule I have no liability. The court in Yania v. Bigan would likely rule I have no liability. But the California court in the 60’s would say I am liable for the trespasser (interestingly enough, Ouellete v. Blanchard would say I’m liable to a trespasser but not “a person who enters against the known wishes of the landowner.” Can someone explain to me the difference?)

My feeling is: In addition to losing my sacrosanct right to undisturbed possession of property by your trespassing, must I also relinquish to you my property right to the knowledge of that ditch? I don’t think so.

The property right to information gives the question of Bird v. Holbrook a new spin as well. That information of knowing where the gun is and how much it will hurt you is a property right the government is forcing me to give you. Is that a government taking? Should I be compensated (say by being promised you’ll stay the hell off my land?) It’s obviously a valuable property right (it may mean the difference between life and death). Should I have to give it to you simply because you’ve taken other rights? Does it hinge on whether I intentionally set a trap to harm you? Then my ditch example would be exempt from immunity. But why should it matter? Should I have to tell you that “deadly force” will be used if you trespass? Why? How much of my bundle am I obligated to give you since you’ve already decided to take some without my permission?