Premises Liability

1
Premises Liability
2
Foreseeability

• Foreseeability may be regarded as the most
  significant consideration in determining the
  extent to which a person is owed a duty of
  reasonable care (Rodriguez v. Sabatino, 1997).

3
Foreseeability

• Foreseeability is considered to be the degree to
  which the university knew, or should have known,
  that an invitee may be exposed to the probability
  of injury.
• Foreseeable danger, lies at the foundation of
  the duty to use care that is the risk of injury
  to another person, reasonably within the range of
  apprehension that is taken into account in
  determining the existence of the duty to exercise
  care (American Jurisprudence, 2004, p. 39).

4
Foreseeability

• The courts are using foreseeability as an
  important aspect specific to the area of premises
  liability (Esper Keating, 2006).
• Although a land possessor is not an absolute
  insurers of the visitors safety, premises
  liability holds landowners and/or possessors of a
  property liable for injuries occurring on their
  property including land areas and facilities
  (Sharp, 2003).

5
Court Findings

• Traditionally, courts have held that there was no
  duty to protect individuals from criminal
  activity on the premises.
• However, litigation has grown regarding this
  issue in recent years, with an increasing trend
  against land possessors (Bates Bates, 2005).

6
Categories

• The duty of the owner varies depending on the
  status of the party on the premises (Wong, 2002).
  
• Generally, there are three types of entrants
  trespassers, licensees, and invitees, and, with
  each classification, the owner owes a different
  standard of care owed to each individual.

7
Trespassing

• A trespasser is an individual who enters the
  premises without the permission of the owner
  (Maloy, 2001 Wong, 2001).
• Normally, a landowner does not owe a duty of
  reasonable care to a trespasser (Dobbs, 2001).
• In fact, unless it is an exceptional situation,
  the landowner is not required to even keep a
  lookout for the trespasser if the trespasser is
  involved in dangerous activities on the land
  (Wolf v. National Railroad Passenger Corp.,
  1997).

8
Trespasser

• A broad definition of a trespasser would include
  any individual who entered a property without the
  landowners express or implied consent (Dobbs,
  2000).
• Although a trespasser is owed no duty of
  reasonable care, a duty exists in which the
  landowner cannot cause intentional injury, to
  set a trap, or cause wanton injury (Dobbs, 2000,
  p. 592).

9
Licensee/Invitee

• Generally 2 types of individuals which a facility
  owner may have a duty to
• Licensee a person who enters the property, with
  the owners consent, for the licensees own
  purpose
• Owner only owes a duty of ordinary care
• No obligation to inspect the area for unknown
  dangers or to warn against conditions that are
  open and obvious
• Owner only owes a duty to warn when a risk is
  known or should be known under the reasonable
  care standard, which the licensee is unaware

10
Licensee

• Licensees are individuals who have the express or
  implied consent of the owner to be on the
  premises (Dobbs, 2000).
• When a landowner gives permission or extends an
  invitation to a guest, no assurances the premises
  is entirely safe is given (Dobbs, 2000).
• As such a licensee is owed only an ordinary
  standard duty of care (Wong, 2002).

11
Licensee

• This standard of ordinary care for a licensee
  involves reasonable care regarding only when the
  possessor is aware or possesses a reason to know
  of concealed conditions (The American Law
  Institute, 1965, 330).
• Licensees do not rise to the same status level of
  an invitee " because they are not on land open
  to the public generally and not present for any
  potential economic transaction with or benefit to
  the landowner." (Dobbs, 2000, p. 596).

12
Invitee

• Invitee one who has been invited by the
  property by the owner/supervisor of the property
• The invitee is owed a greater duty of care than
  a licensee
• The basis of liability is the implied
  representation at the time of the invitation that
  the premises are safe to enter

13
Invitee

• An invitee who enters the premises is different
  from a licensee in that there is an implied
  assurance to the invitee that the area has been
  prepared and is in reasonably safe condition
  while the person is there (The American Law
  Institute, 1965, 332).
• Invitees are generally regarded as those
  individuals who are users, participants or
  spectators of sport activities (Maloy, 2001).

14
Invitee

• The invitee status of entrants may be divided
  into two classifications public invitee and
  business invitee.
• Whereas the public invitee who gains access to
  the area as member of the general public, the
  business invitee is invited to enter the area due
  to some business relationship, though not
  necessarily monetary in nature, with the land
  possessor (Dobbs, 2000).

15
Business Invitee

• A distinction between a public and business
  invitee may be one of determining why the person
  is on the premises.
• A business invitee, as applied to athletic
  contests, may be considered to be any fan
  attending an intercollegiate contest conducted on
  university/college owned premises may be
  considered a business invitee (Mallen, 2001).

16
Business Invitee

• Since fans who go onto property owned by a
  university/college and pay to watch a football
  game or any other athletic event are business
  invitees, a land owner has a greater level of
  duty to protect patrons attending sport events
  from negligent behavior (Mallen, 2001).
• A business invitee who enters the land for
  business purposes establishes a duty of ordinary
  care against known harms (Restatement (Second) of
  Torts 344 (1979).

17
Duty to Protect

• The "special relationship" or duty to protect
  patrons at sporting event is required if a
  criminal attack was reasonably foreseeable
• Recently, the courts have realized that extending
  liability could have a significant effect on
  sports organizations, towns, sport sponsors, and
  private individuals who own the premises where
  the sporting events take place (Docheff Conn,
  2004).

18
Duty to Protect

• The Restatement (Second) of Torts (The American
  Law Institute, 1965, 342) recognized the general
  duty owed by landowners to their business
  invitees to provide reasonable protection from
  foreseeable criminal assaults.

19
Duty to Protect

• The courts have recognized that a business
  invitee is owed the duty to
• use reasonable care in keeping up the property in
  a reasonably safe condition as
• duty to warn of dangers of which the owner has or
  should have known,
• dangers which are not known to the invitee as
  well as dangers of which the invitee would be
  able to ascertain from reasonable care

20
Duty to Protect

• There is no duty to exercise reasonable care
  until the landowner recognizes or has reason to
  know from previous experience that there is a
  possibility that the conduct of third parties may
  endanger the safety of the visitor (Dobbs, 2000).
  

21
Duty to Protect from Third Parties

• When a possessor of land opens it for use to the
  general public, the landholder becomes subject
  for liability of the public if harm, occurring to
  a member of that public, is caused accidentally,
  intentionally or negligently by the act of a
  third person and the landholder fails to exercise
  reasonable care (The American Law Institute,
  1965, 344).

22
Duty to Protect from Third Parties

• Reasonable care of a landholder is identified as
  discovering that such acts are being done or
  likely to be done or give an adequate warning so
  that the visitor may avoid the harm (Dobbs,
  2000).

23
Hayden v. Notre Dame

• The plaintiff claimed that the university was
  negligent in failing to protect Mrs. Hayden.
• The lone factor at question was is whether Notre
  Dame owed Letitia Hayden a duty under the
  circumstances.
• The plaintiffs argued that premises liability was
  essential in the case and that Letitia Hayden's
  position as an invitee and resulting standard of
  care by the landowner was a pertinent standard.
• Neither party challenged that Mrs. Hayden was a
  business invitee of Notre Dame University.

24
Hayden v. Notre Dame

• Notre Dame stated that it owed no duty to protect
  Hayden from a third party's criminal act.
• It argued that the third party's action was
  unforeseeable, thus preventing it from
  anticipating the third partys action and
  protecting Letitia Hayden, a business invitee.

25
Hayden v. Notre Dame

• The court applied the totality of the
  circumstances which ascertained that Notre Dame
  should have foreseen that harm would likely
  result from the actions of a third party in
  diving for the football after it landed in the
  seating area.

26
Hayden v. Notre Dame

• As the plaintiff and her husband were seated in
  the universitys football stadium to watch a
  game, the court stated that the university knew
  full well the enthusiastic actions of its
  football fans.
• The university had evidence from previous
  situations at football games that resulted in
  individuals being shoved or harmed by others
  attempting to retrieve the football.

27
Hayden v. Notre Dame

• The court held Notre Dame University owed Letitia
  Hayden a duty based on the totality of the
  circumstances.
• The duty owed should have been taking reasonable
  steps in protecting her from harm due to the
  actions of other fans.

28
Bearman v. Notre Dame

• It was reported that since the owner is not an
  insurer of the visitor's safety, there would be
  no duty to exercise any care until it becomes
  known or there is reason to recognize that the
  acts of the third person are occurring, or are
  about to occur.

29
Bearman v. Notre Dame

• This recognition may come from past experience,
  that there is a likelihood of conduct on the part
  of third persons in general which is likely to
  endanger the safety of the visitor, even though
  there may be no reason to anticipate it on the
  part of any particular individual.

30
Bearman v. Notre Dame

• If the place or character of business, or past
  familiarity, is such that could reasonably
  foresee careless or criminal conduct on the part
  of third persons, either in general or at some
  specific time, the organization may be under a
  duty to take precautions against it, and to
  provide a reasonably sufficient warning or
  security to afford a reasonable protection
  (Dobbs, 2001).

31
Bearman v. Notre Dame

• Although the university did not possess any
  previous knowledge of a specific danger in the
  form of the drunken individual, it did have the
  understanding that people become intoxicated at
  tailgate parties who then posed a general threat
  to the safety and well being of other patrons.

32
Bearman v. Notre Dame

• The University is aware that alcoholic beverages
  are consumed on the premises before and during
  football games. The University is also aware that
  "tailgate" parties are held in the parking areas
  around the stadium.

33
Bearman v. Notre Dame

• Thus, even though there was no showing that the
  University had reason to know of the particular
  danger posed by the drunk who injured Mrs.
  Bearman, it had reason to know that some people
  will become intoxicated and pose a general threat
  to the safety of other patrons.
• Therefore, Notre Dame is under a duty to take
  reasonable precautions to protect those who
  attend its football games from injury caused by
  the acts of third persons