Premises Liability

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).

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).

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 insurer’s of the visitor’s 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).

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).

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.

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).

Trespasser A broad definition of a trespasser would include any individual who entered a property without the landowner’s 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).

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 owner’s consent, for the licensee’s 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

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).

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).

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

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).

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).

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).

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).

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).

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.

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

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).

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).

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).

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.

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 party’s action and protecting Letitia Hayden, a business invitee.

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.

Hayden v. Notre Dame As the plaintiff and her husband were seated in the university’s 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.

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.

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.

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.

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).

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.

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.

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