Do Landowners owe a Duty to Mischievous Invitees?

My little brother Evan has always been mischievous. For example, when we were kids, he once ventured into a control center located behind the secret panel of a retail store. Another time, he managed to shut off the entire plumbing system of an outdoor mall by finding just the right pump located underneath a fake boulder.

Now that he is an adult, I still wonder what duty a landowner would owe to an invitee who ventures into an area they are not authorized or expected to be?  Michigan courts hold that in those situations, an invitee could be considered a trespasser.

Premises liability requires a plaintiff to prove the elements of negligence: (1) the defendant owed a duty; (2) the defendant breached that duty; (3) an injury proximately resulted from that breach; and (4) the plaintiff suffered damages. The specific duty owed depends on a plaintiff’s status as an invitee, licensee, or trespasser at the time of the injury. A plaintiff who is on a landowner’s premises for commercial purposes is considered an invitee.

A person maintains invitee status as long as he is on the portion of the premises involved in the invitation. As the Michigan Supreme Court once held: “The plaintiff was bound to leave defendant's premises by the usual, ordinary, and customary way in which the premises are and have been departed from, provided the same be safe and in good condition, and if for his own convenience, or other reason (than defect in the usual place of departure), he leaves such way, he becomes, at best, a licensee and cannot recover for injuries from a defect outside of said way.”  If the scope of the invitation is exceeded and the invitee ventures into an area without the landowner’s consent, the invitee may become a trespasser.

The only duty owed to a known trespasser is to refrain from injuring him through active negligence. Active negligence must arise from affirmative acts committed in the presence of a plaintiff, and not from the condition of the premises. Therefore, even if Evan gets injured by a secret paneled door or fake boulder the next time we go shopping, the landlord would not likely be liable.

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