My Immunity Does Not Extend To You


As the owner or possessor of real property in Kentucky you are subject to potential liability for what happens to the people who come on to your premises. Visitors are classified according to their purpose for being there and whether, the possessor of the land has given consent to them being there. The standard of care the possessor of the property is required to exercise differs based on these classifications of which there are three. A visitor is either one of the following:

  1. 1. Trespasser on the property without the consent of the possessor.
  2. 2. Licensee on the property with the consent of the possessor; or
  3. 3. Invitee on the property with the consent of the possessor as a member of the general public

For whom the property is held open or for business purpose to benefit the possessor.

The duty owed, by the possessor, to a person who suffers physical harm on land possessed by another varies based on how they are classified and not surprisingly, the duty owed to a trespasser is the lowest amongst the three. Codified under KRS 381.232, which states in pertinent part:

The owner of real estate shall not be liable to any trespasser for injuries sustained by the trespasser on the real estate of the owner, except for injuries that are intentionally inflicted by the owner or by someone acting on the owner’s behalf.

This differs with the duty of care owed to a licensee or invitee, with the former being owed a duty to not knowingly allow them to come upon “hidden peril’ or knowingly cause them harm and the latter being assured that “when they enter the premises the possessor has provided for reasonable care and protection of their safety”. Smith v. Smith, 563 S.W.3d 14, 17-18 (Ky. 2018).

There are exceptions to the above however; as illustrated in the recent case of Estate of David v. Pounds, 553 S.W.3d 262 (Ky. Ct. App 2018). The events leading to this decision regrettably resulted in the death of someone who had been invited to go fishing. The owner of the property had extended permission to two individuals to fish on his property in a private pond. Those two, in turn, invited a third person to join them unbeknownst to the property owner. While on the property the group took a small fishing boat out onto the pond. The boat subsequently capsized resulting in the death accidental drowning of the third party. His estate sued the property owner and the two individuals who had invited him to join them fishing for negligence. The trial court dismissed the action pursuant to KRS 150.645, an appeal followed.

Nearly identical to Kentucky’s recreational use statute, KRS 411.190, KRS 150.645 states in pertinent part:

An owner, lessee, or occupant of premises who gives permission to another person to hunt, fish, trap, camp or hike upon the premises shall owe no duty to keep the premises safe for entry or use by the person or to give warning of any hazardous conditions on the premises… Nothing in this section limits in any way any liability which otherwise exists.

The key language here being “owner, lessee, or occupant”, the Court of Appeals affirming the decision to dismiss the owner of the property, based on the plain language of the statute. His two guests however weren’t so lucky however. The Appeals Court finding they were not entitled to the protection under the statute because they were not “owners, lessee’s, or occupants” but merely guests who had invited other guests to go fishing. They had no possessory interest in or control of the premises.

Key Holding: An “occupant” is defined as someone who has possessory rights in, or control over certain property or premises.