Liability of Owners and Occupiers of Land Sb 125

Publication year2014

Liability of Owners and Occupiers of Land SB 125

Georgia State University Law Review

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Liability of Owners and Occupiers of Land: Amend Article I of Chapter 3 of Title 51 of the Official Code of Georgia Annotated, Relating to General Provisions Regarding the Liability of Owners and Occupiers of Land, so as to Codify the Duty of a Lawful Possessor of Land to a Trespasser Against Harm; Provide for Legislative Findings; Define a Term; Provide for Related Matters; Repeal Conflicting Laws; and for Other Purposes

Code Sections:

O.C.G.A. § 51-3-3 (new)

Bill Number:

SB 125

Act Number:


Georgia Laws:

2014 Ga. Laws 351


The Act clarifies Georgia's position on the duty owed to trespassers by owners and occupiers of land. Under the Act, owners and occupiers of land owe no duty of care to trespassers, except to refrain from causing purposeful injury. The Act also provides that the new law does not alter the attractive nuisance doctrine regarding children.

Effective Date:

July 1, 2014


Under traditional common law, the level of care that landowners and occupiers owed to those who had entered their land depended on whether the entrant was an invitee,1 licensee,2 or trespasser.3 To


trespassers,4 a landowner or occupier owed a duty to not willfully or wantonly inflict injuries,5 although the common law carved out limited exceptions for certain groups such as children.6 A landowner's duty to not willfully and wantonly injure a trespasser aligns with the Second Restatement of Torts, which provides that, in general, "a possessor of land is not liable to trespassers for physical harm caused by his failure to exercise reasonable care (a) to put the land in a condition reasonably safe for their reception, or (b) to carry on his activities so as not to endanger them."7 Today, Georgia law follows the common law's tripartite analysis and the Second Restatement.

The common law's tripartite categories appear simple, but an examination of Georgia's case law interpreting the tripartite regime reveals many nuances. For instance, courts have held that an entrant may be an invitee on one part of a premises and yet a licensee or

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trespasser on other parts of the premises.8 In addition, courts generally hold that a landowner or occupier is under no duty to anticipate a trespasser's presence.9 And where a landowner or occupier neither knows of the trespasser's presence nor the danger, no duty arises to maintain the premises.10 However, a landowner or occupier may not lay a trap with the intent to harm trespassers.11

In contrast to the American Law Institute's (ALI) position that is reflected in the Second Restatement and Georgia's cases, ALI's Third Restatement of Torts, published in 2009, adopted a "unitary duty of reasonable care"12 for entrants on the land.13 Under the unitary standard, "a landowner is liable to any person injured on her premises as long as the plaintiff can prove that the landowner breached the reasonable care standard and caused the plaintiff's injuries."14

Many jurisdictions have adopted a unitary standard. For example, the Mississippi Supreme Court in Handy v. Nejam adopted the standard after considering the states that have, as the court stated, moved "firmly in line with modern tort law that generally requires persons to exercise reasonable care to prevent or avoid reasonably foreseeable harm."15 The Handy court found persuasive "the inescapable logic that the adoption of such a standard is efficient and beneficial to the administration of justice."16 Mississippi is not alone in its adoption of the unitary standard; Alaska, California, the District

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of Columbia, Hawaii, Louisiana, Montana, Nevada, New Hampshire, and New York have also adopted it.17 Some states have carved out a middle position by eroding the difference between invitees and licensees. These states include Florida, Illinois, Iowa, Kansas, Maine, Massachusetts, Minnesota, Nebraska, New Mexico, North Carolina, North Dakota, Oregon, Rhode Island, Tennessee, West Virginia, Wisconsin, and Wyoming.18

Georgia has rejected the position reflected in ALI's Third Restatement.19 In 2013, Senator Jesse Stone (R-23rd) introduced Senate Bill (SB) 125 to reject the unitary standard and to codify the traditional status-based duties, especially those regarding trespassers, to ensure landowners are protected from liability.20

Bill Tracking of SB 125

Consideration and Passage by the Senate

Senators Jesse Stone and Steve Gooch (R-51st) sponsored SB 125.21 The Senate read the bill for the first time on February 8, 2013 and it was referred to the Senate Judiciary Committee the same day.22 The Judiciary Committee favorably reported a Committee substitute on February 21, 2013.23

The Committee substitute made only one significant change from the original version: it made owners or occupiers of land liable to child trespassers only in the case of an artificial condition, rather than

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any condition likely to entice children onto the land.24 All other changes in the Committee substitute were stylistic. For example, the Committee divided subsection (a) into subsections (a) and (b), providing a separate definition that helped to clarify the section.25 The Senate read the bill for a second time on February 22, 2013.26 After a third reading on February 25, 2013, the Senate passed the Committee substitute by a vote of 51 to 0.27

Consideration and Passage by the House

Representative Tom Weldon (R-3rd) sponsored the bill in the House.28 The House read the bill for the first time on February 26, 2013, and read the bill a second time on February 27, 2013.29 The bill was referred to the House Judiciary Committee.30 Judiciary Committee Chairman Wendell Willard spoke with the bill sponsors and all agreed to hold the bill for nearly one year while the House of Representatives further researched the issue.31 Georgia State University Professor Mary Radford and Elizabeth Hornbrook, a third-year student at the Georgia State University College of Law, provided a memorandum to Chairman Willard detailing the alternative approaches available to the Committee.32 The analysis influenced Chairman Willard, who felt a definite need for codification.33 The Committee favorably reported a substitute on January 31, 2014.34

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The Committee made significant stylistic changes by reconstructing the layout of the bill. For example, the proposed changes to the bill included a new section regarding the General Assembly's intent and purpose of the bill.35 Additionally, the House Committee subsumed the previous version's lengthy description creating an exception for children into a concise subsection regarding the attractive nuisance doctrine.36 Susie Womick, Counsel to the Judiciary Committee at the House of Representatives, stated that Committee members attempted to codify an exception to protect child trespassers.37 Due to the complexity involved in codifying the exception, the Committee ultimately deferred to the courts and codified the judge-made exception known as the attractive nuisance doctrine.38

The bill was read in the House for a third time on February 18, 2014 and the House passed the substitute bill by a vote of 167 to 0 on the same day.39 On March 20, 2014, the Senate agreed to the House amendments by a vote of 48 to 0.40 The bill was sent to the Governor on March 27, 2014 and signed into law on April 21, 2014.41

The Act

The Act amends Title 51 of the Official Code of Georgia Annotated with the purpose of codifying Georgia's common law status-based duties owed by possessors of land to trespassers and expressly preserving Georgia courts' continued application of the attractive nuisance doctrine.42

Section One of the Act highlights the General Assembly's findings and intent surrounding it's decision to codify Georgia's common law position on premises liability, finding that "the provisions of [ALI's]

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Restatement of the Law Third, Torts: Liability for Physical and Emotional Harm, §§ 50-52 (2012), which seek to impose broad new duties on those who own, occupy, or control premises, including the duty to exercise reasonable care to all trespassers, do not reflect the public policy of the State of Georgia."43 Section One also explicitly states the General Assembly's intent "to preserve the attractive nuisance doctrine and Georgia common law as it relates to the attractive nuisance doctrine."44

Section Two of the Act adds a new section to Title 51 of the Code, codified as section 51-3 -3.45 Code section 51-3-3(a) defines the term "possessor of land" as used throughout the section.46 Subsection (b) codifies the common law standard, whereby a "lawful possessor of land owes no duty of care to a trespasser except to refrain from causing a willful or wanton injury."47 The remaining subsections clarify the General Assembly's positions on preserving the attractive nuisance doctrine and availability of immunities from and defenses to civil suits for possessors of land.48


Policy Considerations

Some scholars view the Third Restatement as the latest development—but perhaps not an inevitable evolution49 —in the softening of a "harsh" common law rule that has unfolded over two centuries.50 In fact, Georgia's own attractive nuisance doctrine grew out of an attempt to ameliorate the harsh results that followed from the "no duty" rule.51

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Other scholars have called Chapter Nine of the Third Restatement, which imposed an affirmative duty on landowners to exercise reasonable care, one of its "most controversial" parts.52 In sharp contrast to the Third Restatement, the Second Restatement provided that a landowner or occupier owes no affirmative duty to a trespasser.53 The public policy aim of the Second Restatement's position seeks to allow landowners "the free use of the private property" while shielding them from...

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