Philadelphia Personal Injury Attorney Talks About Philadelphia Personal Injury Licensees

Where a pedestrian intentionally chooses to take a short cut across a possessor of land’s parking lot, it is “questionable” whether the pedestrian is a licensee or trespasser. Ott v. Unclaimed Freight Company, 577 A.2d 894, n. 6 (Pa. Super. 1990). Ott involved a pedestrian who frequently used a shortcut through a parking lot. Other individuals also used the possessor’s parking lot as a shortcut. Nevertheless, the court was unable to conclude that the pedestrian was a trespasser. If one who frequently and intentionally takes a commonly used shortcut across another’s property is arguably a licensee, certainly one who unintentionally and on only one occasion ventures at most a few inches onto the property of another is not a trespasser. Thus, such a person is a licensee at the time of an accident.

A “licensee” is defined as “a person who is privileged to enter or remain on land only by virtue of the possessor’s consent.” Ott v. Unclaimed Freight Company, supra, citing §330 of the Restatement (Second) of Torts. Comment e to §330 states that a possessor’s “consent” may be expressed by acts rather than words. Ott v. Unclaimed Freight Company, supra. “[W]hether a possessor’s conduct may be construed as consent, depends upon the particular facts and circumstances of each case.” Id. Comment e “suggests that where a possessor permits individuals to cut across his or her property as a shortcut, the individuals who cross the property will be treated as licensees, and not trespassers, unless the possessor posts notice or otherwise manifests an objection.” Ott, supra.

A failure to post a notice warning the public not to trespass cannot reasonably be construed as a expression of consent to the intrusion of persons who have habitually and notoriously disregarded such notices. Longbottom v. Sim-Kar Lighting Fixture Company, 651 A.2d 621 (Pa. Cmmwlth. 1994), citing, Restatement (Second) of Torts § 330, comment C.