Daily Development for
Friday, August 1, 1997

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

LANDOWNER LIABILITY; LIABILITY FOR INJURY TO INVITEES; CLASSIFICATION: Nebraska abandons the distinction between invitees and licensees; owners and occupiers owe a general duty of reasonable care to all lawful entrants.

Heins v. Webster County, 552 N.W.2d 51 (Neb. 1996).

Plaintiff slipped on ice injuring himself in a fall while visiting the Webster County Hospital. He sought to characterize the nature of his trip as a social visit coupled with a business purpose since the state still adhered to the common-law classifications of licensee-invitee-trespasser for purposes of determining premises liability. The district court decided that the plaintiff was a licensee at the time of his fall, and given the totality of the circumstances, Webster County was liable.

On appeal, the Nebraska Supreme Court noted that the common-law distinction between invitees and licensees had been abolished in England since 1957 and that 23 domestic jurisdictions have abolished either some or all of the categories. The court concluded that Nebraska should eliminate the distinction as well, instead requiring a standard of reasonable care for all lawful visitors. Thus the remedial focus would be on the foreseeability of the injury rather than on the status of the person entering the property.

The court retained, however, the separate classification for trespassers. The court was careful to note that it was not making owners and occupiers insurers but only imposing the duty to exercise reasonable care. The court offered an nonexclusive list of factors to be considered in evaluating reasonableness as it pertained to lawful visitors and reversed and remanded the case for reconsideration of the court's newly adopted standard.

A dissent criticized the majority's evaluation of the status of the traditional classifications. The dissent noted the irony of stating that modern society no longer contemplates liability based on such standards while simultaneously pointing out that the majority of jurisdictions have retained the distinctions. Additionally, the dissent noted, "lawful" visitors are not necessarily desired visitors and thus a homeowner faces potential liability for a number of unwanted parties coming to his door.

Compare: Robinson v. Poured Walls of Iowa, Inc., 553 N.W.2d 873 (Iowa 1996). Although a possessor of land is subject to liability for physical harm caused to invitees, and although an employee of a subcontractor is a business invitee; a general contractor with limited involvement in hiring the subcontractor and checking on the project's progress is not liable as a possessor.

LANDOWNER LIABILITY; LIABILITY FOR INJURY TO BUSINESS INVITEE; "SPECIAL DANGER" EXCEPTION: Owner of hockey rink is not liable to invitee injured when hit with hockey puck on ice, even though lighting in rink was inadequate, because risk of injury and inadequacy of lighting were obvious dangers, and lighting did not pose such a special danger as to justify invoking the limited exception to the rule denying liability for injuries caused by obvious dangers.

Singerman v Municipal Service Bureau, Inc. , Docket Nos. 103715, 103716 (Mich. Sup. Ct. 7/15/97)

The court differentiated cases involving unusually dangerous design in steps or platforms. The court stated the exception established in these cases as follows:

"The question [as to whether a risk falls within the exception to the obvious danger rule] is not the foreseeability of harm. Rather the question for the courts to decide is whether the risk of harm remains unreasonable, despite its obviousness or despite the invitee's knowledge of the danger. If the court finds that the risk is still unreasonable, then the court will consider whether the circumstances are such that the invitor is required to undertake reasonable precautions. If so, then the issue becomes the standard of care and is for the jury to decide."

Here, although the defendants might have anticipated that someone would be injured by a flying hockey puck due to the inadequate lighting, so might the plaintiff. And the court, reversing the court of appeals, concluded that the nature of the risk was not so unusual or severe as to justify an exception to the general rule. The plaintiff was an experienced hocky player and coach.

Comment: Although the court purports to distinguish other cases involving persons injured by falling down steps that were obviously dangerous, it is very hard to discern the line that the court sees separating the various cases. The court suggests that the nature of the danger in the dangerous steps cases was such that a reasonable person, having observed it, might forget it. It concluded that the plaintiff in the hockey rink always had the inadequate lighting condition before him, and therefore could not have forgotten it. But the court ignores the fact that when the plaintiff entered the rink and went on the ice, there was no hockey game going on. A game started up somewhat suddenly, and the plaintiff, still on the ice (but not participating in the game) was then hit by an errant shot. Clearly the circumstances might have led to plaintiff to forget that he lacked the vision he might normally have to safely duck.

In the editor's view, this "judgment call" reflects a Michigan court's reluctance to saddle hockey rinks with expensive insurance costs and to reward experienced coaches with damage claims for doing what they normally do. There appears to be no principle in tort law that would justify the legal distinctions made.

Comment 2: The court also rejected plaintiff's claim that the defendants failure to warn him to put on a helmet (in compliance with state law) was actionable, because there was no evidence that a helmet would have prevented the injury. Plaintiff argued nevertheless that had he been warned, he might have thought more about the danger of inadequate lighting. This was too silly for the court, but it did say that it might have ruled differently had the injury been preventable by the helmet.

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