What a Minnesota property owner owes someone who comes onto the land

Minnesota stopped sorting entrants into licensees and invitees in 1972 and replaced the categories with one duty of reasonable care. Two things narrow that duty, and both of them are more qualified than they sound.

Most of what circulates about premises liability describes a system Minnesota left behind more than fifty years ago. The categories — trespasser, licensee, invitee, each with its own graded duty — were abolished here in 1972 for two of the three, and the case that did it is worth reading because it says exactly how far it went and exactly where it stopped.

What Peterson v. Balach did, and what it declined to do

Cynthia Peterson was a social guest, which under then-existing law made her a licensee. The rule the trial court applied came from Holland v. Hedenstad, 287 Minn. 244, 246, 177 N.W.2d 784, 785 (1970), quoted in Peterson, 294 Minn. at 163, for the proposition that a possessor of property owes a licensee no duty of inspection and no duty of affirmative care to make the premises safe for the licensee’s visit. A directed verdict for the defendant followed as a matter of course. The Minnesota Supreme Court used the case to change the rule.

Peterson v. Balach, 294 Minn. 161, 199 N.W.2d 639 (1972), surveyed the state of the law and found it indefensible — “recovery by an entrant has become largely a matter of chance, dependent upon the pigeonhole in which the law has put him” — and then set out the replacement in two numbered paragraphs, 294 Minn. at 173-74:

(1) An entrant's status as a "licensee," or "invitee" is no longer controlling, but is one element, among many, to be considered in determining the landowner's liability under ordinary standards of negligence.

(2) The duty required of a landowner (or the person charged with responsibility for the condition of the land) as to licensees and invitees is no more and no less than that of any other alleged tortfeasor, and that duty is to use reasonable care for the safety of all such persons invited upon the premises, regardless of the status of the individuals.

The court was equally explicit about the boundary of its holding:

We herewith abolish the traditional distinctions governing licensees and invitees but decline to rule on the question of a landowner's duty toward trespassers. Judicial restraint suggests that this question be deferred to a later day and to another case.

That reservation is not a historical curiosity. It is why Minnesota statutes still speak of a separate trespasser standard as a live thing — the recreational-use statute preserves liability “for conduct which, at law, entitles a trespasser to maintain an action and obtain relief for the conduct complained of,” Minn. Stat. § 604A.25(1), and the municipal tort statute repeatedly carves out “conduct that would entitle a trespasser to damages against a private person,” as in Minn. Stat. § 466.03, subds. 6e, 16, 20, and 22. Peterson merged the licensee and the invitee. It did not merge the trespasser with either.

Peterson also listed what does bear on the question, in footnote 7:

Among the factors to be considered might be the circumstances under which the entrant enters the land (licensee or invitee); foreseeability or possibility of harm; duty to inspect, repair, or warn; reasonableness of inspection or repair; and opportunity and ease of repair or correction.

One more feature of the rule is easy to miss. Peterson imposed reasonable care on both sides: “the new rule will impose the duty of reasonable care on both the landowner and entrant,” and “such a person entering upon the land will be held to the same standard of care, that of a reasonable man under the circumstances then existing.” The entrant’s own conduct is then handled through comparative fault, described in the comparative fault guide.

The first narrowing: known or obvious dangers

The continuing duty of reasonable care is not absolute, and the limit Minnesota uses comes from the Restatement. Louis v. Louis, 636 N.W.2d 314, 319 (Minn. 2001), sets it out:

A possessor of land is not liable to his invitee for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.

That is Restatement (Second) of Torts § 343A (1965), which the Minnesota Supreme Court has adopted and applied. Louis explains the rationale in a phrase: “no one needs notice of what he knows or reasonably may be expected to know.” Louis also confirmed that the rule reaches every entrant, not only invitees, because after Peterson “a possessor of land owes the same duty to all entrants, regardless of their status as invitees or licensees.”

The final clause of § 343A is where the real work happens, and Sutherland v. Barton, 570 N.W.2d 1, 7 (Minn. 1997), says so:

However, even if a danger is known and obvious, landowners may still be liable to their invitees if they "should anticipate the harm despite such knowledge or obviousness." Restatement (Second) of Torts § 343A (1965). This language is a crucial qualifier to the general rule.

Sutherland then names one situation that triggers the qualifier, quoting comment f: a reason to anticipate the harm may arise when the landowner “has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk.”

“Known” and “obvious” are two different tests and Louis keeps them apart. For “known,” the court quoted comment b: “the word ‘known’ denotes not only knowledge of the existence of the condition or activity itself, but also appreciation of the danger it involves. Thus, the condition or activity must not only be known to exist, but it must also be recognized that it is dangerous, and the probability and gravity of the threatened harm must be appreciated.” That is subjective, and it takes more than awareness that the thing is there.

For “obvious,” Louis at 321 states the opposite:

Under both our case law and the Restatement, the test for what constitutes an "obvious" danger is an objective test: the question is not whether the injured party actually saw the danger, but whether it was in fact visible.

And a condition is not obvious, the court added quoting comment b, unless both the condition and the risk are apparent to and would be recognized by a reasonable person “in the position of the visitor, exercising ordinary perception, intelligence and judgment.” Louis also gathered examples of conditions previously held so obvious that no warning was required — a low hanging branch, a steep hill, a large planter, a twenty-foot square pool of water — and observed what they had in common: in each, “the danger associated with the condition at issue was found to be clearly visible, or in plain view, meaning the condition itself posed the obvious danger.”

The second narrowing: the owner has to have known about the condition

The duty is to use reasonable care, and reasonable care does not require omniscience. The rule is older than Peterson and survived it. Messner v. Red Owl Stores, Inc., 238 Minn. 411, 413 (1953), a case about banana peels on a grocery store floor, states it:

Unless the dangerous condition in the instant case resulted from acts of defendant's employes, defendant would be negligent only if its employes failed to rectify the dangerous condition after they knew, or in the exercise of reasonable care should have known, that the condition existed.

And the burden allocation, at 415 (citations omitted):

The accident and resulting injury to plaintiff were most unfortunate, but we are bound by the rules governing burden of proof. Defendant is not an insurer of its customer's safety — its liability depends upon negligence. Plaintiff had the burden of proving either that defendant caused the dangerous condition or that it knew, or should have known, that the condition existed.

Messner is worth reading for how demanding that burden turned out to be on the evidence there. The plaintiff argued that because the peels were “kind of shriveled up and dark brown,” a jury could infer they had been on the floor long enough to charge the store with constructive notice. The court rejected the inference, holding that the deteriorated condition of the fruit alone was not sufficient evidence of how long it had been there. Louis, decided nearly fifty years later, cites Messner for the same proposition, and adds a distinction that matters: the question is knowledge of the dangerous condition, not knowledge of the particular danger the plaintiff encountered.

Duty does not depend on a special relationship

A recurring defense argument is that a landowner owes an affirmative duty of protection only where a special relationship exists — the line of cases about a duty to protect one person from the conduct of another. Louis was that argument, and the court rejected it as a category error, holding at 320-21 that “where the negligence claim at issue is based on a theory of premises liability, whether there is a duty owed by the landowner does not depend on the existence of a special relationship.” The two doctrines are separate. A premises claim starts from possession of the land, not from a relationship between the parties.

Where a statute changes the answer

Three statutes displace or modify the common-law rule for particular kinds of land, and each has conditions on its face.

Land opened for recreation without charge. Minn. Stat. § 604A.22 provides that, except as § 604A.25 provides, “an owner who gives written or oral permission for the use of the land for recreational purposes without charge” owes no duty to render or maintain the land safe, no duty to warn “of any dangerous condition on the land, whether patent or latent,” no duty of care “except to refrain from willfully taking action to cause injury,” and no duty to curtail use during recreational use. Section 604A.23 adds that giving such permission does not extend any assurance the land is safe, does not confer invitee or licensee status, and does not assume responsibility for injury. Both sections turn on the same two conditions in their opening clause: permission, and no charge. “Recreational purpose” is defined broadly at § 604A.21, subd. 5, and “land” at subd. 3 is limited to land “privately owned or leased or in which a municipal power agency has rights.” Section 604A.24 extends the same protection to a handful of additional categories, including land leased to the state or a political subdivision for recreational purposes. And § 604A.25 preserves liability for conduct that would entitle a trespasser to relief, and for injury “in any case where the owner charges the persons who enter or go on the land for the recreational purpose” — with an exception under which consideration paid by the state or a political subdivision for a lease or dedication is not a charge. The first of those two preservations is then withdrawn for one large category. A second paragraph of § 604A.25 provides that, except for conduct set forth in § 604A.22, clause (3), a person may not maintain an action for conduct referred to by clause (1) “if the entry upon the land is incidental to or arises from access granted for the recreational trail use of land dedicated, leased, or permitted by the owners for recreational trail use.” So on a trail dedicated, leased, or permitted for recreational trail use the trespasser-conduct route is gone, and what survives is § 604A.22, clause (3) — willful action to cause injury.

Residential rental property. Minn. Stat. § 504B.161, subd. 1(a) writes five covenants into every residential lease or license, including that the premises and all common areas are “fit for the use intended by the parties,” that the landlord will keep them “in reasonable repair,” and that the landlord will maintain them “in compliance with the applicable health and safety laws of the United States, of the state, and of the local units of government, including ordinances regulating rental licensing.” Paragraph (b) makes them non-waivable: “The parties to a lease or license of residential premises may not waive or modify the covenants imposed by this section.” Subdivision 2 allows an agreement shifting specified repairs to the tenant, but only for adequate consideration, only in a conspicuous writing, and never as to common areas. Subdivision 3 directs liberal construction and provides that the opportunity to inspect before signing does not defeat the covenants. Subdivision 5 states the boundary: “Nothing in this section shall be construed to alter the liability of the landlord or licensor of residential premises for injury to third parties.”

Public property. A fall on city, county, school district, or state property runs on a different statute with its own immunities and its own short notice clock, described in the government claims guide. Two of the exceptions there are specifically about premises. Minn. Stat. § 466.03, subd. 4(a) immunizes a municipality against “[a]ny claim based on snow or ice conditions on any highway or public sidewalk that does not abut a publicly owned building or publicly owned parking lot, except when the condition is affirmatively caused by the negligent acts of the municipality.” Subdivision 6e immunizes claims arising from park and recreation property “if the claim arises from a loss incurred by a user of park and recreation property or services.” Both are written with their own carve-outs, and the carve-outs are where these cases are argued.

What this page is not

It describes the duty Minnesota imposes on a possessor of land, the two doctrines that narrow it, and three statutes that displace it for particular kinds of property. It does not assess whether any particular condition was dangerous, obvious, or known, whether any particular owner should have anticipated harm anyway, or whether any particular statute applies to any particular parcel. Those are fact questions and the cases treat them as such.