Duty Arising from the Relationship of Landowner and Entrant

Duty Arising from the Relationship of Landowner and EntrantBusiness Invitees, Licensees, Trespassers, Landlord-Tenant Duty, and the Hospitality Duties That Flow From Possession of Land in Pennsylvania and New Jersey

Posted By Brian E. Fritz, Esquire | Fritz and Bianculli, LLC | Philadelphia, PA

Introduction: When Possession of Land Creates a Duty

A customer walks into a supermarket, slips on a puddle of melted ice cream that has been sitting on the floor for an hour, and shatters her hip. A subcontractor’s electrician walks across a commercial construction site toward his assigned work area, steps into an unmarked hole in the concrete slab that the general contractor’s crew cut the day before and falls two stories. A tavern serves its last three rounds of whiskey to a patron who is visibly slurring his words, helps him out to the parking lot, and watches him drive away; twenty minutes later he crosses a center line and kills an oncoming motorist. A New Jersey homeowner hosts a dinner party, keeps refilling the wine glass of a guest who is plainly intoxicated, and sends the guest off into the night behind the wheel of his car. In every one of these cases, the defense begins the same way: my client did not cause the harm, the plaintiff’s own carelessness or a third party’s conduct did, and my client had no legal obligation to prevent what happened. Pennsylvania and New Jersey courts answer that argument by looking at who possessed the land and what relationship the injured person had to the possessor. The relationship supplies the duty.^1,2

Duty in a premises liability case is not a matter of judgment about what a reasonable possessor of land should have foreseen. It is a matter of status. The law categorizes every person who enters another’s land as an invitee, a licensee, or a trespasser, and each category carries with it a fixed set of obligations that the possessor owes. The business invitee — a customer of a store, a diner at a restaurant, a patient at a medical office, a worker invited onto a construction site — receives the highest duty the common law has to offer. The licensee — a social guest, a door-to-door solicitor — receives a middle duty. The trespasser — with significant and important exceptions for children drawn to artificial conditions — receives the lowest. When the possessor also sells or serves alcohol, a parallel body of law — dram shop liability for commercial servers, social host liability for private hosts — imposes a further duty running to the foreseeable victims of the intoxicated person’s conduct. The duty arising from assertion of control — including retained control over construction sites, landlord possession of common areas, and commercial alcohol service — is the focal point of this analysis. This article maps the framework, applies it to four recurring fact patterns from Philadelphia and South Jersey practice, and identifies the categories of cases most frequently touched by relational duty analysis. A companion pillar article will address the separate category of special-relationship duties that arise from custodial and protective relationships outside the possession-of-land context.

The Doctrinal Framework: Entrant Status and the Possessor’s Duty

The Three Categories of Entrants

Pennsylvania and New Jersey both follow the traditional common-law classification of entrants onto land, adopted from the Restatement (Second) of Torts §§ 328(E), 329, 330, and 332. The Restatement defines a possessor of land as a person who occupies the land with intent to control it, and defines the duties owed to entrants by reference to the entrant’s status at the moment of injury. A trespasser is a person who enters or remains on land without the possessor’s consent. A licensee is a person privileged to enter by virtue of the possessor’s consent but for the licensee’s own purposes — most commonly the social guest. An invitee is either a public invitee, who enters land held open to the public for a purpose for which the land is so held open, or a business visitor, who enters for a purpose directly or indirectly connected with business dealings with the possessor of the land.^1,3,4,5

The classification is not always intuitive. A social guest invited to a dinner party is a licensee, not an invitee, because the purpose of the visit is the guest’s own pleasure and the host confers no business benefit. A customer at a retail store is a business invitee because the store holds itself open for the purpose of commercial transactions with members of the public. A contractor, subcontractor, or employee of either, working on a possessor’s property under a contract or permission to perform work, is a business invitee of the possessor with respect to the areas of the property where he is invited to be. The classification controls the duty, and the duty controls the viability of the claim.^3,5,6

The Duty Owed to Business Invitees: The Highest Duty at Common Law

A possessor of land owes the highest duty of care under the common law to a business invitee. That duty, set out in Restatement (Second) of Torts § 343 and adopted in both Pennsylvania and New Jersey, is affirmative and layered. The possessor is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he knows or by the exercise of reasonable care would discover the condition and should realize that it involves an unreasonable risk of harm to such invitees, should expect that they will not discover or realize the danger or will fail to protect themselves against it, and fails to exercise reasonable care to protect them against the danger. Section 343A adds that a possessor is not ordinarily liable for harm caused by conditions whose danger is known or obvious to the invitee, unless the possessor should anticipate the harm despite such knowledge or obviousness.^6,7,8

The phrase “by the exercise of reasonable care would discover” is what distinguishes the invitee duty from every lesser duty. A possessor of land who holds his premises open to business invitees has an affirmative obligation to inspect the premises, to discover unsafe conditions, to remedy them or warn about them, and to do all of this continuously for as long as the premises remain open to invitees. The possessor cannot defend on the ground that he did not know about a condition if he should have known, and he cannot defend on the ground that discovery would have required effort. The duty exists because the possessor has invited the public onto his land for his own economic benefit, and the law places the cost of premises safety on the party who profits from the invitation.^7,8,9

The scope of the duty reaches further than many defendants recognize. A possessor of land is responsible not only for permanent defects in the building — the broken step, the unlit stairwell, the loose handrail — but also for transitory conditions that arise during business hours, including spills, tracked-in water, dropped merchandise, and hazards created by other invitees. Pennsylvania and New Jersey courts evaluate transitory conditions using the constructive notice framework: the plaintiff must show that the condition existed long enough that a possessor exercising reasonable care would have discovered and remedied it before the plaintiff was injured. The length of time required depends on the nature of the business, the type of hazard, the traffic patterns of the store, and the possessor’s own inspection practices. A large supermarket with published hourly sweep protocols and a condition that has been present for sixty minutes has no defense on constructive notice; a small shop with a single employee and a condition present for thirty seconds may. The factual inquiry is for the jury, and the framing of that inquiry is what wins or loses a slip-and-fall case.^7,10

The Contractor and Subcontractor as Invitee

The business invitee category is not limited to customers. A contractor performing work on a possessor’s property, a subcontractor’s employee performing work under a subcontract, a delivery driver bringing materials to a site, a utility worker repairing equipment, and a service technician making a scheduled call are all business invitees of the possessor with respect to the areas of the premises where their work takes them. Pennsylvania and New Jersey both recognize the full force of § 343 in this context. The possessor owes the worker the same affirmative inspection, discovery, warning, and remediation duties that it owes a retail customer — adjusted only for what the possessor knows or should know about the nature of the work and the hazards the worker is there to address.^6,11,12

Two wrinkles recur in contractor-invitee cases. The first is the so-called “peculiar risk” or “retained control” doctrine, governed in Pennsylvania and New Jersey by Restatement (Second) of Torts §§ 414 and 416. When a possessor of land — typically a property owner or a general contractor — retains control over any part of a subcontractor’s work, or delegates work that involves a peculiar risk of physical harm to others unless special precautions are taken, the possessor remains liable for the harm caused by the negligent failure to take those precautions, notwithstanding the existence of the subcontract. Retained control is a fact question driven by the presence of the possessor’s safety personnel on site, the possessor’s exercise of authority over the means and methods of the work, and the possessor’s actual involvement in hazard identification and remediation. The doctrine is substantial enough to have its own treatment; it is flagged here because it frequently transforms a simple invitee case into a direct corporate-liability case against a property owner or general contractor.^11,12,13

The second wrinkle is the interaction with workers’ compensation immunity. An injured worker’s own employer — whether the direct employer or, in some jurisdictions, a statutory employer — is generally shielded from tort liability by the exclusive-remedy provisions of the workers’ compensation statutes. Relational duty theories do not break that immunity as to the employer. But they do support robust claims against every other possessor of the land on which the injury occurred — the property owner, the general contractor, any other contractor with control over the relevant area, and any tenant, lessee, or occupier whose status as a possessor is supported by the facts. The invitee analysis is how a catastrophically injured construction worker in Pennsylvania or New Jersey reaches the corporate defendants outside the workers’ compensation bar.^11,14

The Duty Owed to Licensees

A licensee — paradigmatically the social guest — receives a materially lesser duty. Restatement (Second) of Torts § 342, adopted in Pennsylvania and New Jersey, provides that a possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if, the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees and should expect that they will not discover or realize the danger, fails to exercise reasonable care to make the condition safe or to warn the licensees of the condition and the risk involved, and the licensees do not know or have reason to know of the condition and the risk involved. The critical difference from § 343 is the absence of any affirmative obligation to inspect. The possessor is liable only for conditions he actually knows or has reason to know about. He does not have to go looking.^5,15

The social-guest example illustrates the practical consequences. A homeowner who invites a neighbor over for dinner and knows the basement stairs are rotted has a duty to warn the neighbor or fix the stairs. A homeowner who invites a neighbor over for dinner and has never noticed the rotted stairs because he never uses the basement has no duty to inspect and no liability when the neighbor falls through. The licensee framework places the cost of discovery on the licensee, not on the host, because the licensee enters for his own purposes and not for any benefit conferred on the possessor.^5,15

The Duty Owed to Trespassers and the Attractive Nuisance Exception

A trespasser, by definition, enters the land without the possessor’s consent. The common-law rule is that a possessor owes a trespasser only the duty to refrain from willful or wanton conduct and from deliberately inflicted injuries. The rule reflects a judgment that a person who enters without permission cannot reasonably expect the possessor to have prepared the premises for his arrival. Pennsylvania and New Jersey both continue to apply this rule with modest refinements, including heightened duties to known or frequent trespassers whose presence the possessor has come to anticipate.1^6,17

The signal exception is the attractive nuisance doctrine, codified in Restatement (Second) of Torts § 339 and adopted in both jurisdictions. When a possessor maintains an artificial condition on his land that he knows or should know children are likely to trespass upon, that involves an unreasonable risk of death or serious bodily harm to such children, that the children because of their youth do not discover or realize the risk, that the utility of the condition and the burden of eliminating the risk are slight compared to the risk to children, and where the possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children, the possessor is subject to liability for physical harm to the trespassing child. The doctrine is most commonly applied to unfenced swimming pools, abandoned equipment, construction sites near residential areas, and similar conditions that draw children and expose them to hazards they cannot appreciate.^16,18

Landlord-Tenant Duty and Foreseeable Criminal Conduct

Possession of land is not limited to single-occupant owners. Landlords who retain control over common areas — lobbies, hallways, parking lots, laundry rooms, stairwells, elevators — remain possessors of those areas for purposes of the entrant-status framework and owe the full business-invitee duty to tenants, tenants’ guests, and anyone else lawfully on the premises. The landlord’s duty extends not only to physical conditions but, when the facts support it, to the duty to protect invitees from the foreseeable criminal conduct of third persons. Pennsylvania’s leading authority on this duty is Feld v. Merriam (1984), in which the Supreme Court held that a landlord who undertakes to provide security measures may be held liable for negligent performance of that undertaking, and subsequent Pennsylvania cases have extended the analysis to landlords whose past experience with crime on the premises gave rise to a duty to take reasonable protective measures. New Jersey reaches similar results through its own line of cases recognizing that the landlord-tenant relationship is a special relationship supporting an affirmative duty to protect against foreseeable third-party harm.^19,20,21

The foreseeability analysis in these cases turns on the possessor’s knowledge of prior criminal activity on or near the premises, the nature of the criminal activity, the reasonableness of the security measures in place, and the relationship between the measures available and the harm that occurred. A landlord with a documented history of assaults in a parking lot and no functioning security lighting is in a materially different position from a landlord in a low-crime area who has taken ordinary precautions. The point for present purposes is that the duty exists, that it arises from the landlord’s possession of the common areas combined with the tenancy relationship, and that relational duty analysis — not a search for some freestanding general duty of care — is how the plaintiff’s lawyer establishes it.

Hospitality Duties: Dram Shop Liability and the Social Host

Commercial Dram Shop Liability

The duty owed by a licensed alcoholic beverage server to the foreseeable victims of an intoxicated patron is a distinct relational duty grounded in the possessor’s commercial relationship with the drinker. Pennsylvania and New Jersey have both codified dram shop liability by statute, and both jurisdictions impose substantial civil exposure on commercial servers who serve alcohol to visibly intoxicated persons who then cause harm to themselves or others.^22,23

Pennsylvania’s dram shop framework arises under the Liquor Code, 47 P.S. § 4-493(1), which makes it unlawful for any licensee, servant, agent, or employee of such licensee to sell, furnish, or give any liquor or malt or brewed beverages to any person visibly intoxicated. Pennsylvania courts have interpreted this provision as a source of civil liability running to third parties injured by the intoxicated patron’s subsequent conduct. The plaintiff must prove that the server furnished alcohol to a patron who was visibly intoxicated at the time of service and that the service was a substantial factor in causing the injuries. Service of multiple rounds to a patron whose intoxication would have been apparent to a reasonable server is the paradigmatic case.²²

New Jersey’s dram shop framework is codified in the Licensed Alcoholic Beverage Server Fair Liability Act, N.J.S.A. 2A:22A-1 et seq. The statute permits a civil action against a licensed server whose negligent service of alcohol to a visibly intoxicated person or to a minor proximately caused injury to another person or to property. The Act imposes procedural and substantive limits on dram shop claims — it sets the standard, requires the injury to have been foreseeable, and provides defenses for servers who complied with recognized responsible-service training. It nonetheless preserves a robust civil remedy against commercial servers who ignore visible signs of intoxication and continue to pour.²³

Social Host Liability: The Sharp Pennsylvania / New Jersey Contrast

The treatment of social host liability — liability of a private host who serves alcohol to a guest who then causes harm — is the point at which the law of Pennsylvania and the law of New Jersey diverge most dramatically. A plaintiff’s lawyer practicing in both jurisdictions must understand the contrast, because it changes not only the theory of the case but, in many instances, whether a case exists at all.^24,25

Pennsylvania takes the narrower position. Under Klein v. Raysinger (1983) and its progeny, the Pennsylvania Supreme Court declined to extend common-law social host liability to adult hosts who serve alcohol to adult guests who then cause harm to third parties. The reasoning is that the host does not force the adult guest to drink, the guest is legally entitled to accept or decline, and the proximate cause of the subsequent harm is the guest’s decision to drive. Pennsylvania does, however, recognize social host liability where the host has served alcohol to a minor — a person under the legal drinking age. Congini v. Portersville Valve Co. (1983) held that because the statutory prohibition on furnishing alcohol to minors is enacted for the protection of the minor and of the public, a host who violates the statute and the minor is injured or causes injury to others can be held liable on a negligence per se theory. The Pennsylvania social host doctrine, in short, is essentially a minor-service doctrine.^24,26

New Jersey takes the broader position, and has done so since the New Jersey Supreme Court’s landmark decision in Kelly v. Gwinnell (1984). In Kelly, the court held that a social host who serves alcohol to an adult guest the host knows, or should know, is intoxicated and who the host knows will thereafter drive a motor vehicle may be held liable to a third person injured as a proximate result of the guest’s drunk driving. The court grounded the duty in ordinary negligence principles and the foreseeability of harm from drunk driving, and rejected the argument that adult autonomy should defeat liability. New Jersey subsequently codified and modified the doctrine by statute at N.J.S.A. 2A:15-5.5 et seq., which preserves adult-to-adult social host liability in defined circumstances while imposing certain limits and procedural requirements. The practical result is that a dinner-party case that is dead on arrival in Pennsylvania may be a viable claim in New Jersey, and the choice-of-law analysis in any cross-border case is critical.^25,27

Both jurisdictions share one piece of common ground: service of alcohol to a minor, by any host, creates exposure. Pennsylvania’s Congini doctrine reaches the minor-service social host case directly, and New Jersey’s statute and common law impose equivalent liability for social host service to underage drinkers. A host — adult or minor — who furnishes alcohol to a person under the legal drinking age in either jurisdiction is at risk under the relational duty framework, and the defense that the minor chose to drive is not available.

Case Study 1: The Supermarket Spill and the Missing Sweep Log

A customer entered a large supermarket in the Philadelphia region during the late afternoon rush and walked toward the frozen foods aisle. Near the end of the aisle, a container of ice cream had been dropped, opened, and left on the floor. The ice cream had melted into a wide, glossy puddle that blended into the white tile. Store employees had walked past the spill multiple times over the course of approximately an hour. No employee cleaned it, cordoned it off, placed a cone near it, or warned customers approaching the aisle. The customer — a woman in her sixties carrying a shopping basket — stepped into the puddle, her foot slid out from under her, and she landed on her hip. The resulting hip fracture required surgical repair, months of rehabilitation, and left her with permanent loss of function.

The duty analysis against the supermarket was controlled by Restatement (Second) of Torts § 343. The customer was a business invitee of the supermarket, which had held its premises open to the public for the purpose of retail sales. The supermarket, as the possessor of the premises, owed her the highest duty of care at common law: the duty to inspect for unsafe conditions, to discover them, to warn about them, and to remedy them. The spill was an unreasonable risk of harm — a transitory hazard of the precise character that supermarkets train their employees to watch for. The customer could not reasonably have been expected to discover the puddle herself given the coloration of the floor and the flow of shopping traffic. The supermarket’s obligation to exercise reasonable care was activated the moment any employee saw or should have seen the condition.^6,7,8

The constructive notice framework decided the breach question. The spill had been present for approximately an hour. The supermarket’s own published procedures required hourly sweeps of every aisle during business hours. The sweep log for the day of the incident was either incomplete, missing, or showed the sweep had not been performed on schedule. A large high-traffic retail operation with a written sweep protocol and an hour-old spill on a main aisle cannot credibly argue that reasonable care would not have discovered the condition. Pennsylvania law is clear that constructive notice is established when a transitory condition has been present long enough that the possessor, exercising reasonable care and following its own procedures, would have found it and remedied it before the plaintiff was injured. The supermarket’s case collapsed on the notice element, and the jury was left with only the question of damages.

Case Study 2: The Subcontractor’s Electrician and the Unmarked Hole

A commercial construction project in South Jersey involved the renovation of an existing multistory building. The project was managed by a general contractor, which had retained multiple subcontractors to perform specialty work. One of the subcontractors was an electrical contractor whose employees were responsible for installing conduit, wiring, and fixtures on the upper floors. Earlier in the week, the general contractor’s crew had cut a rectangular opening in a concrete slab on one of the upper floors in order to accommodate a vertical mechanical chase. The opening was approximately three feet by four feet. The crew that cut the opening left the area without barricading the hole, without placing a cover over it, without marking its perimeter, and without posting warning signs. The opening sat exposed for more than twenty-four hours. An electrician employed by the electrical subcontractor arrived on site the following day, walked across the slab toward his assigned work area, stepped into the opening, and fell through to the floor below. He survived with catastrophic injuries.

The electrician was a business invitee of the general contractor. He was present on the premises for a purpose directly connected with the business dealings between the general contractor and his employer, the electrical subcontractor. Section 343 imposed on the general contractor the full affirmative duty to inspect the premises for unsafe conditions, to discover them, to remedy or warn about them, and to protect the electrician from conditions involving an unreasonable risk of harm that the electrician could not reasonably be expected to discover on his own. An unmarked, unbarricaded, uncovered, unsigned hole in a concrete slab in an active work area is exactly the kind of condition § 343 is designed to reach. The general contractor’s crew had created the condition. The general contractor’s safety personnel had failed to identify and correct it. And the general contractor had retained control over site safety, including hole-cover and barricade protocols, throughout the project.^6,11,12

The retained-control and peculiar-risk analysis under Restatement (Second) of Torts §§ 414 and 416 reinforced the invitee analysis and supported a direct claim against the general contractor independent of respondeat superior for the acts of its own employees. The workers’ compensation immunity that would have shielded the electrical subcontractor’s own direct liability did not extend to the general contractor, which was not the electrician’s employer. The case proceeded against the general contractor and the property owner on parallel invitee-duty and retained-control theories, and the substantial verdict that followed reflected both the severity of the injuries and the straightforwardness of the duty analysis.^11,12,13,14

Case Study 3: The Last Three Rounds at the Tavern

A patron spent the evening drinking at a tavern in the Philadelphia region. Over the course of several hours, he consumed an escalating number of drinks, culminating in three shots of whiskey ordered and served in the final forty minutes of his visit. By the time the last shot was poured, the patron was visibly intoxicated: his speech was slurred, he had difficulty standing, he was loudly repeating himself to other patrons, and the bartender had watched him struggle to count out cash for the tab. A second employee assisted him out to the parking lot. Neither employee offered to call a cab, neither prevented him from getting behind the wheel of his car, and neither alerted the police. The patron drove out of the lot and onto a nearby road. Within fifteen minutes he had drifted across a double-yellow line and collided head-on with an oncoming vehicle, killing the oncoming driver — a young mother traveling home from work.

The dram shop claim against the tavern was grounded in the Pennsylvania Liquor Code, 47 P.S. § 4-493(1). The statute prohibits any licensee or employee of a licensee from selling, furnishing, or giving any liquor to a visibly intoxicated person. The visible-intoxication standard is not a technical one — it is a fact-bound observational standard measured by what a reasonable server in the licensee’s position would have perceived at the time of service. Slurred speech, unsteady gait, loud and repetitive conversation, and difficulty managing money are textbook signs of visible intoxication, and the bartender here had observed all of them. The statutory violation supplied the breach element of the negligence claim, and the tavern’s continued service of multiple additional rounds under those conditions was the substantial factor that led to the crash.22

The plaintiff — the estate and surviving family of the deceased oncoming driver — recovered a substantial wrongful death and survival verdict against the tavern. The relational duty framework controlled the analysis throughout. The tavern’s status as a licensed commercial server created the statutory duty. The statutory duty ran to foreseeable third-party victims of the intoxicated patron’s subsequent conduct, not merely to the patron himself. And the patron’s decision to drive drunk did not break the causal chain, because the very purpose of the statute is to prevent the server from placing a visibly intoxicated person in the position of making that decision. The case is representative of how Pennsylvania dram shop claims are structured and why they succeed.

Case Study 4: The New Jersey Dinner Party and the Social Host

A New Jersey couple hosted a dinner party at their home for a group of friends and neighbors. Over the course of the evening, the host repeatedly refilled the wine glass of one of the guests — a man whose growing intoxication was obvious to everyone at the table. The guest was loud, his motor coordination was visibly impaired, and by the end of the meal he was having difficulty forming coherent sentences. The host knew the guest had driven himself to the party and knew he intended to drive himself home. No one offered to call a cab, arrange a ride, or suggest that the guest stay the night. When the guest announced that he was leaving, the host walked him to the door, said good night, and watched him get into his car and drive away. The guest, intoxicated and alone at the wheel, lost control of the vehicle on a curve and struck a pedestrian walking on the shoulder of the road. The pedestrian sustained catastrophic injuries.

The social host duty analysis in New Jersey begins with Kelly v. Gwinnell (1984) and ends with the statutory framework at N.J.S.A. 2A:15-5.5 et seq. Kelly holds that a social host who serves alcohol to an adult guest the host knows or should know is intoxicated and who the host knows will thereafter drive a motor vehicle owes a duty to the foreseeable victims of the guest’s drunk driving. The duty is grounded in ordinary negligence principles and the foreseeability of harm. Every element was present here. The host knew the guest was visibly intoxicated — indeed, the host had personally poured the drinks that produced the intoxication. The host knew the guest intended to drive. The host took no action to prevent it. The pedestrian struck on the shoulder was exactly the foreseeable third-party victim Kelly was decided to protect.25,27

Had the identical dinner party occurred on the Pennsylvania side of the river, the relational duty analysis would have yielded a different answer. Pennsylvania, under Klein v. Raysinger (1983), does not recognize common-law social host liability for adult-to-adult service, and the pedestrian’s claim against the host would face immediate dismissal on duty grounds. The only Pennsylvania social host claim that would survive is one involving service to a minor under Congini v. Portersville Valve Co. (1983). The sharp contrast between the two jurisdictions is not an academic curiosity. It is a choice-of-law question that determines whether the case exists at all, and it is a reason to pay careful attention to where the alcohol was served, where the crash occurred, and where the parties reside whenever a social host theory is on the table.24,26

Similarly Situated Possessor-Entrant Contexts

The four case studies above are representative of a broader category of cases governed by the same framework. Any commercial establishment open to the public — retail stores, restaurants, bars, movie theaters, hotels, banks, gyms, medical offices, and professional offices — owes the full business-invitee duty to its customers and to workers invited onto the premises. Any property owner hiring contractors for construction, renovation, maintenance, or repair owes the same duty to those contractors and their employees, with the retained-control and peculiar-risk doctrines providing additional direct-liability theories. Landlords who retain control over common areas in residential and commercial buildings owe the full invitee duty within those areas and may owe an additional duty to protect tenants and their guests from foreseeable third-party criminal conduct. Homeowners who invite social guests into their homes owe the lesser licensee duty as to conditions they actually know about, and owe no duty to inspect. Owners of property that attracts children — unfenced pools, abandoned buildings, construction sites adjacent to residential neighborhoods — owe the attractive nuisance duty under § 339 even to child trespassers. And commercial alcohol servers owe the statutory dram shop duty to the foreseeable victims of their visibly intoxicated patrons, while social hosts in New Jersey owe the Kelly v. Gwinnell (1984) duty in defined circumstances. Each of these is a relational duty case, and each begins with the same two questions: who possessed the land or served the alcohol, and what relationship did the injured person have to that possessor or server?

Conclusion

Relational duty is the most doctrinally stable source of duty in personal injury practice. It does not depend on novel theories, contested statutory interpretations, or the shifting standards of reasonable care in the abstract. It rests on a simple proposition: once the law identifies a relationship between the defendant and the plaintiff — possessor and invitee, possessor and licensee, commercial server and foreseeable victim, social host and foreseeable victim — the content of the duty follows from the category. Business invitees in Pennsylvania and New Jersey receive the highest duty the common law has to offer, and the possessors who invite them onto the land bear the corresponding obligation to inspect, discover, warn, and remedy. Licensees receive a more modest duty tailored to the host’s actual knowledge. Trespassers receive almost nothing, unless they are children drawn to an artificial hazard. Commercial dram shop duty protects the motoring public from visibly intoxicated patrons. Social host duty, dramatically different in Pennsylvania than in New Jersey, protects foreseeable third parties from the consequences of hospitality carried too far. For the plaintiff’s lawyer in Philadelphia and New Jersey, the first question in any premises, hospitality, or alcohol case is not what a reasonable person would have done — it is what the relationship required. The answer to that question is almost always where the case is won or lost.

About Brian E. Fritz, Esquire

BRIAN E. FRITZ, ESQUIRE has represented seriously injured clients in Pennsylvania and New Jersey for almost 30 years. He has dedicated his practice to providing hope to the victims of others’ negligence and helping them navigate the challenges they now face. His primary focus includes: construction and premises liability; corporate direct liability for negligence; motor vehicle and trucking accidents; dangerous and defective products; unsafe modification of products and machinery; medical malpractice with an emphasis on birth-related injuries and cerebral palsy; exposing liability caused by disguised and hidden corporate decision-makers; establishing vicarious liability where companies have mislabeled workers as independent contractors; securing third-party liability for catastrophically injured workers whose recoveries would otherwise be limited to workers’ compensation; and providing second opinions to seriously injured clients whose cases were initially rejected on mistaken assumptions.

He is admitted to practice law in the State and Federal Courts of Pennsylvania and New Jersey and has handled cases in other jurisdictions on a pro hac vice basis. Based in Philadelphia, he represents clients throughout Pennsylvania and New Jersey. He is a member of the Board of Directors of the Philadelphia Trial Lawyers Association.

He has been recognized annually by his peer attorneys for inclusion in Super Lawyers and has been named one of the Top 100 Attorneys in Philadelphia in the Super Lawyers rankings. He has annually been selected for inclusion in The Best Lawyers in America. His case results have achieved annual national and state recognition by Best of the Bar, reserved for only the top 100 resolutions in any given year. He has annually received Martindale-Hubbell’s AV Preeminent rating for Legal Ability and Ethical Standards based on voting by peer attorneys and members of the Judiciary (Judicial Edition).

Disclaimer: This article is for educational and informational purposes only and does not constitute legal advice. Every case is unique, and the information presented here should not be relied upon as a substitute for consultation with a qualified attorney. If you have been injured, please contact a licensed personal injury attorney in your jurisdiction to discuss the specific facts and circumstances of your situation.