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42 T. Marshall L. Rev. 97 (2016-2017)
Holmes, Doctrinal Evolution, and Premises Liability: A Perspective on Abolishing the Invitee-Licensee Distinction

handle is hein.journals/thurlr42 and id is 117 raw text is: 






       HOLMES, DOCTRINAL EVOLUTION, AND
       PREMISES LIABILITY: A PERSPECTIVE ON
         ABOLISHING THE INVITEE-LICENSEE
                         DISTINCTION

                           ELIOT T. TRACZ


I.  INTRODUCTION

     Property ownership, and in particular land ownership, has long held an
important place in American ideology. James Madison once wrote that the
idea of property embraces everything to which a man may attach value and
have a right; and which leaves to everyone else the like advantage.' Much
of  John Locke's  Second  Treatise of Government,  which  played  an
influential role in the ideology of many of the Founding Fathers, deals with
property and the value of property ownership for individuals and society at
large.2 It is no surprise then that property ownership has held such an
important status in the United States.
     But to what extent should the landowner be granted free control over
his own  property? Should property owners be subjected to liability for
injuries suffered by those who enter on their property with the owner's
consent? If the answer is yes, to what degree should the owner be liable,
and in what circumstances should the owner be exempt from liability?
     The common  law has attempted to answer these questions and in doing
so courts adopted the practice of dividing entrants upon property into three
categories: invitees, licensees, and trespassers. In doing so the courts
assigned  a different duty of  care to  each group  based  upon  the
characteristics of the group and the social values of the time. In recent years
a debate has raged over whether to retain the common  law  distinction
between invitees and licensees, or whether to adopt a unitary standard for
all entrants upon property.
     This essay  examines  the  arguments  over  the  invitee-licensee
distinction in light of modem views of property ownership and determines
whether  this distinction is still relevant or if another rule would be
preferable. Part II establishes a theoretical framework based for examining
the invitee-licensee distinction of premises liability by drawing upon the
ideas set forth in Oliver Wendell Holmes, Jr.'s seminal work, The Common

   1. James Madison, 6 THE WRITINGS OF JAMES MADISON 101 (Galliard Hunt ed., 1906).
   2. See generally John Locke, SECOND TREATISE OF GOVERNMENT  (C. B.
Macpherson ed., Hackett Publ'g Co. 1980) (1690).

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