by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

As all of us had kids swarming over our properties last night for Halloween festivities, I thought that a case on neighbor's liability to child guests was particularly appropriate.

LANDOWNER'S LIABILITY; INVITEES AND LICENSEES; NEGLIGENCE: Absent willful or wanton conduct, property owners are not liable when neighbors' child, a licensee, suffers trampoline injury on their property. Bader v. Lawson, 898 S.W.2d 40 (Ark. 1995).

The fact that the two families often entertained each other and cared for each other's children, thus conferring (putative) economic benefits on the property owners, did not render the child an invitee, meaning that she entered the property for the business benefit of the property owner; rather, the child was a licensee, meaning that she entered the property with the consent of the property owner for her (or rather, her parents') own purposes and not for the mutual benefit of her and the property owner.

The Arkansas Supreme Court again declined to expand the "invitee" category beyond that of a public or business invitee whose presence is primarily social. The court further held that the property owners owed the child, as a licensee, the duty to not injure her through willful or wanton conduct, which conduct the court refused to recognize.

Reporter's Comment: A welcome demarcation of the boundary between commerce and neighborliness.

Editor's Comment: Note that many jurisdictions have found unworkable the entire common law system of differentiating among visitors to property for purposes of defining duty. Does it really make sense to identify differing duties of care in the abstract? Granted, it would be useful for landowners if judges used the distinctions to keep matters from going to the jury when the lower standard of care hasn't been breached. But aren't many judges likely to leave the issue to the jury? And isn't a jury likely to make its decision about care on the basis of all the facts before it, rather than to try to differentiate duties based upon these conceptual distinctions?

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