Daily Development for
Thursday, October 2, 1997
by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Here are three cases on landowner's liability - two out of three for the plaintiff.
LANDOWNERS' LIABILITY; CLASSIFICATION OF PLAINTIFF; "LICENSEE:" Classification of individual injured on premises as either "licensee" or "invitee" governs determination of duty of care owed by property owner, and raises issues of fact sufficient to defeat summary judgment motion.
Brown v. Nicholson, 935 P.2d 319 (Okla. 1997).
The plaintiff was employed by a garage owner's husband and received free parking privileges in the garage. While descending a steep ramp from her rooftop parking space, the plaintiff slipped, fell, and broker her leg. She sued the garage owner for damages related to her injuries, and the lower court granted summary judgment in favor of the garage owners, holding that the plaintiff had been a licensee, and the appellate court affirmed.
On certiorari, the Oklahoma Supreme Court reversed, holding that the classification of the plaintiff as either a "licensee" -- one who enters the premises for his own benefit and pleasure with the implied or express permission of the landowner and is owed a duty of "ordinary care", or an "invitee" -- one who enters the premises for the purpose of a common interest and mutual advantage for himself and the landowner and is owed a higher duty of "reasonable care" -- raised rather than eliminated fact questions, and thus, summary judgment was improper. The court remanded for further proceedings.
Comment: What's the point? Is a jury really able to appreciate the subtle distinctions raised in this classification tangle? The editor sees some benefit (perhaps) in specially classifying trespassers, but the distinctions between an invitee and a licensee, and the duties of care owed to each, have become far too subtle to be of practical use for anything other than building a fee base for insurance defense counsel. (Right, I know, what other reason do we need?)
LANDOWNERS' LIABILITY; CLASSIFICATION OF PLAINTIFF; "LICENSEE:" Person engaged in religious solicitation injured while approaching front door of home was licensee, rather than trespasser, for purposes of establishing property owner's duty of care.
Singleton v. Jackson, 935 P.2d 644 (Wash. Ct. App. 1997).
The Washington Court of Appeals held that a reasonable person would interpret the presence of steps leading to the front door of a home as tacit consent by the owner to approach the building and attempt to contact its occupants. Therefore, it reversed the trial court's conclusion that the plaintiff, who had injured herself on the front steps of the building, was a trespasser, concluding instead that the plaintiff was a licensee. However, the Court of Appeals affirmed summary judgment for the property owner because the undisputed facts indicated that the owner had not breached the standard of care owed to a licensee.
Comment: Note that this requires that you post the "no solicitors or agents" plaque at the perimeter of the property, or ininvited solicitors will assume they are welcome. (Right!!)
LANDOWNER LIABILITY; SIGNIFICANCE OF "POSSESSION:" Where private sponsors of event on public property had no control over event, premises, or security measures provided, and fatal shooting of attendee was not reasonably foreseeable, sponsors owed no duty to attendee to provide for her safety.
Gragg v. Wichita State Univ., 934 P.2d 121 (Kan. 1997).
Plaintiffs, heirs and survivors of a woman who was shot and killed at a Fourth of July festival, sued the university on whose property the festival was held and various corporate sponsors of the event. A similar event had been held each of the previous 17 years with no similar occurrences. Sometime during the event, after the fireworks show, the woman and a companion were walking across a poorly lighted portion of the campus and were shot and killed by a gang member. The university and its athletic department owned the property, which was not leased to the event, and the university and city police departments had concurrent responsibility for security, although the university police department had ultimate oversight responsibility. The lower court granted summary judgment in favor of all defendants and the plaintiffs appealed.
The Kansas Supreme Court affirmed the grant of summary judgment in favor of the corporate sponsors, holding that they were not "possessors" of the property pursuant to the Restatement of Torts and thus owed no duty to the victim. The sponsors only provided money, services, or assistance of employees, and even though they each appointed a member to the planning committee for the event, ultimate responsibility for event security remained in the university and its police force. Similarly, the sponsors had no right to install or require the installation of additional lighting, as permission would still have to be obtained from the university, nor did any of them have any special knowledge of the general crime rate of the surrounding area or of the likelihood of the specific crime committed. Moreover, the festival had been conducted for the previous 17 years under nearly identical security measures with no similar occurrences, and the only similar occurrence on university property had been two years earlier and at a wholly different event. The court also rejected, based on the sponsors' lack of control, the plaintiffs' argument that the sponsors were involved in a joint venture and should be held liable for the acts or omission of their joint venturers, i.e., the university.
The court also affirmed the grant of summary judgment in favor of the university, holding that under the totality of the circumstances, i.e., the lack of similar happenings with similar security provisions in the past and the unforeseeable nature of the crime, the university had acted reasonably. Moreover, the university, as a state entity, was within the coverage of the Kansas Tort Claims Act and the discretionary function exception contained in that statute.
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