CHAPTER 9

OWNERS AND OCCUPIERS OF LAND

T.P.I. - Civil
Number

A. Owners and Occupants

Duty of Owners, Occupants or Lessors of Premises	9.01

Premises - Unsafe Condition	9.02

Trespassers	9.03

Trespassing Children	9.04

Plaintiff's Duty of Care	9.05

Duty to Workers - Control	9.06

Duty to Workers - Hazardous Situations	9.07

Owner of Property Adjoining Sidewalk	9.08

Adjoining Owner Creating Hazard on Sidewalk	9.09

Pedestrian's Rights and Duties on Sidewalks	9.10

B. Nuisance

Nuisance - Definition	9.13

Temporary Nuisance - Damages	9.14

C. Leased Premises

Landlord's Liability - Accident on Leased Premises	9.20

Common Area or Area Under Landlord's Control	9.21

Rented Premises - Promise to Put or Keep Premises in Repair	9.22

Landlord's Liability to Invitee of Lessee - Property Leased for Public Purpose	9.23

T.P.I. - CIVIL 9.01

DUTY OF OWNERS, OCCUPANTS OR

LESSORS OF PREMISES

One who owns, occupies or leases property is under a duty to use ordinary care, which is the care that ordinarily careful persons would use to avoid injury to themselves or others under the same or similar circumstances. There is no duty to guarantee the safety of those entering upon the property.

You should consider all the surrounding circumstances in deciding if the defendant used such care.

T.P.I. - CIVIL 9.02

PREMISES - UNSAFE CONDITION

To recover for an injury caused by an unsafe condition of the property, the plaintiff must show that the defendant either created the unsafe condition or knew of it long enough to have corrected it [or given adequate warning of it] before plaintiff's injury, or that the unsafe condition existed long enough that the defendant, using ordinary care, should have discovered and corrected [or adequately warned of] the unsafe condition. An unsafe condition is a condition which creates an unreasonable risk of harm.

T.P.I. - CIVIL 9.03

TRESPASSERS

A trespasser is a person who enters onto the land of another without actual or implied permission.

A trespasser is protected only against willful or reckless conduct by the owner or occupant. If the owner or occupant knows of the entry on the land, however, the owner or occupant must use reasonable care to warn the trespasser of any known danger that is not obvious.

T.P.I. - CIVIL 9.04

TRESPASSING CHILDREN

When an owner [possessor] of property maintains an unusually dangerous condition and knows or has reason to know children are likely to trespass onto the property where the condition exists, the owner [possessor] must use reasonable care to eliminate the danger or to otherwise protect the children. In order for you to find a landowner [possessor] negligent with regard to trespassing children, the plaintiff must prove by a preponderance of the evidence that:

1.	The landowner [possessor] maintained a dangerous condition that was not a natural condition of the land and the landowner [possessor] knew or should have known it posed a risk of death or serious bodily harm to trespassing children;

2.	The landowner [possessor] knew or should have known children were likely to trespass onto the property, either because they would be lured there by the dangerous condition itself or because children regularly used the property as a playground;

3.	Either the dangerous condition was not apparent, or children, because of their youth, would be unlikely to discover and comprehend the risk;

4.	Both the usefulness to the landowner [possessor] of maintaining the dangerous condition and the burden of eliminating the danger was significantly outweighed by the risk of harm to children who would foreseeably trespass onto the property; and

5.	The owner failed to use reasonable care to either eliminate the danger or otherwise to protect the children.

T.P.I. - CIVIL 9.05

PLAINTIFF'S DUTY OF CARE

The plaintiff has a duty to use reasonable care for plaintiff's own safety and to make responsible use of plaintiff's senses. The plaintiff has a duty to see or be aware of an unsafe condition that is obvious or should be discovered through the use of reasonable care.

T.P.I. - CIVIL 9.06

DUTY TO WORKERS CONTROL

When an [owner] [or] [occupant] of property remains in control of the premises where work is being done, the [owner] [or] [occupant] has a duty to use ordinary care in managing the property to avoid exposing the employees of a contractor or subcontractor to an unreasonable risk of harm.

When the contractor has complete control of the premises where the accident occurred and the [owner] [occupant] retains no control of that part of the property [except to the extent of determining if the work is being performed according to the contract], the [owner] [occupant] owes no duty of care to the employees of the [contractor] [subcontractor].

T.P.I. - CIVIL 9.07

DUTY TO WORKERS - HAZARDOUS SITUATIONS

An [owner] [occupant] of property who [conducts] [maintains] an inherently dangerous [activity] [substance] [instrumentality] upon the property does not guarantee the safety of others, but is required to use due care appropriate to the hazards arising from the dangerous [activity] [substance] [instrumentality]. [This duty of due care cannot be avoided by delegating the duty to a contractor or subcontractor.]

T.P.I. - CIVIL 9.08

OWNER OF PROPERTY ADJOINING SIDEWALK

Normally the owner of property adjoining a public sidewalk does not have a duty to keep the sidewalk in a safe condition. If, however, the owner has changed the sidewalk to benefit the owner's property, then the owner has a duty to use ordinary care in making the change and to keep the changed portion of the sidewalk in a reasonably safe condition.
[This duty exists even if a former owner made the change, or if the local government changed the sidewalk at the request of the property owner.] A failure to meet this duty is negligence.

[A condition is not unsafe if the risk created by the condition was so insignificant in view of the surrounding circumstances that it did not create a substantial risk of injury when the sidewalk was used with due care in a manner that was reasonably foreseeable.]

T.P.I. - CIVIL 9.09

ADJOINING OWNER CREATING

HAZARD ON SIDEWALK

When the activities of a business are conducted in a way that creates a hazard on an adjoining sidewalk and the operator of the business knows or has reason to know of that hazard, the operator is under a duty to use reasonable care to remove the hazard within a reasonable time and to give warning of its existence prior to removal. Failure to do so is negligence.

[An operator of a business has reason to know of a hazard when it has existed for so long a time that by using reasonable care in inspecting the area the operator could have discovered the hazard in time to warn others or to correct it.]

T.P.I. - CIVIL 9.10

PEDESTRIAN'S RIGHTS AND

DUTIES ON SIDEWALKS

A pedestrian using ordinary care and making normal use of a public sidewalk can assume that it is in a reasonably safe condition, unless the pedestrian knows or reasonably should know that it is not. To use ordinary care, a pedestrian does not have to look continuously at the sidewalk or be on a continuous lookout for danger. A pedestrian is required, however, to use ordinary care for the pedestrian's safety, including the reasonable use of eyesight and other senses.

T.P.I. - CIVIL 9.13

NUISANCE

DEFINITION

A nuisance is the maintenance of a wrongful condition of one's own property [or property that one has a right to use] over an unreasonable length of time. A nuisance is not an act or failure to act or the result of a negligent or reckless act.

A nuisance is an unreasonable or unlawful use of property that results in material or substantial annoyance, inconvenience, discomfort, harm or injury to the plaintiff, to plaintiff's personal comfort or to the plaintiff's free use, possession or occupation of the plaintiff's own property.

It is not a defense to a nuisance that the defendant used great care or caution to prevent harm.

T.P.I. - CIVIL 9.14

TEMPORARY NUISANCE

DAMAGES

A temporary nuisance is one that can be corrected by money, labor or both. The general measure of damages for a temporary nuisance is the decrease in rental value of the plaintiff's property while the nuisance exists. Special damages, apart from property damage, may be recovered for loss of profit, personal profit, personal discomfort, inconvenience, personal injury and emotional distress.

T.P.I. - CIVIL 9.20

LANDLORD'S LIABILITY - ACCIDENT ON

LEASED PREMISES

An owner who knows, or in the use of reasonable care should have known, of an unsafe condition existing when the tenant took possession has a duty to inform the tenant of the unsafe condition if it was unknown to the tenant, was not apparent and would not have been discovered by reasonable inspection of the property. An owner who fails to inform the tenant of the unsafe condition is responsible for damages resulting from the unsafe condition to a person lawfully on the premises. An unsafe condition is a condition which creates an unreasonable risk of harm.

T.P.I. - CIVIL 9.21

COMMON AREA OR AREA

UNDER LANDLORD'S CONTROL

The [owner] [landlord] is under a continuing duty to use reasonable care to keep in good repair and safe condition the common area(s) available to those lawfully on the premises. [An owner] [A landlord] has the duty to correct an unsafe condition within a reasonable period of time once the [owner] [landlord] has actual or constructive notice of the condition. An unsafe condition is a condition which creates an unreasonable risk of harm.

[An owner] [A landlord] who fails to meet this duty is responsible for damages legally caused by an unsafe condition in a common area under the [owner's] [landlord's] control.

T.P.I. - CIVIL 9.22

RENTED PREMISES - PROMISE TO

PUT OR KEEP PREMISES IN REPAIR

A landlord who has promised at or before the time of renting to put [keep] the premises in repair has a duty to use reasonable care to make an inspection for latent or obscure defects [before transferring possession] [while the tenant has possession]. A landlord has a duty to correct a defect discovered by the landlord's inspection or to warn the tenant of a defect if the defect was unknown and would not be discovered by the tenant making a reasonable inspection.

T.P.I. - CIVIL 9.23

LANDLORD'S LIABILITY TO INVITEE OF LESSEE -

PROPERTY LEASED FOR PUBLIC PURPOSE

An owner who leases property to be used for a public or a semi-public purpose is subject to the same liability as the tenant if at the time the property was leased:

(1)	A condition existed on the property that made its intended use dangerous to other people or to their property; and

(2)	The owner knew of the condition or by using reasonable care should have known of it.