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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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