§4.4 - The Duty of Care Applies Generally to the Possessor of Land

• Jurisdiction: Washington

§4.4THE DUTY OF CARE APPLIES GENERALLY TO THE POSSESSOR OF LAND

In discussing the duty of care, the term "landowner" is sometimes loosely used in the cases (and in this chapter). Strictly speaking, the duty of care under premises liability law arises from possession and control of land, not ownership per se.

A possessor of land is (a) a person who is in occupation of the land with intent to control it or (b) a person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it, or (c) a person who is entitled to immediate occupation of the land, if no other person is in possession under Clauses (a) and (b).

Ingersoll v. DeBartolo, Inc., 123 Wn.2d 649, 655, 869 P.2d 1014 (1994) (citing Restatement (Second) of Torts §328E (1965)); see Gildon v. Simon Prop. Group, Inc., 158 Wn.2d 483, 145 P.3d 1196 (2006) (title owner of property not necessary or indispensible party in premises liability claim); Coleman v. Hoffman, 115 Wn.App. 853, 64 P.3d 65 (2003).

A person acting on behalf of the possessor also is subject to the rules of premises liability with respect to harm caused by his or her activities:

One who does an act or carries on an activity upon land on behalf of the possessor is subject to the same liability, and enjoys the same freedom from liability, for physical harm caused thereby to others upon and outside of the land as though he were the possessor of the land.

Restatement (Second) of Torts §383 (1965), quoted in Jarr v. Seeco Constr. Co., 35 Wn.App. 324, 666 P.2d 392 (1983). In Jarr, the court held that it was a jury question whether the duty of care extended to a real estate agent showing property for sale. See, e.g., Coughlin v. Harland L. Weaver, Inc., 103 Cal.App.2d, 230 P.2d 141 (1951) (owner's real estate agent was "possessor" of dwelling house it had contracted to sell for owner). But see Christopher v. McGuire, 169 P.2d 879 (Or. 1946) (real estate broker employed to sell property is not in "possession and control" of property, unless broker was managing agent with contractual duty to owner to keep the premises in repair). In Coleman v. Hoffman, 115 Wn.App. 853, 64 P.3d 65 (2003), a mortgagee-in-possession case, the court found that acts that showed possession and control, such as making repairs and a managerial decision, or paying utility bills and repair costs, collecting rents, and hiring a property manager, were sufficient to establish possession, but...