Property Owners’ “Duty of Care”
In our case study, Sally owns a dual-use property, where the front of the house is her residence and the rear of her house has incorporated a beauty salon. During a storm, a tree limb fell on a power line, creating a dangerous condition near the entrance to the salon. We are asked to determine Sally’s duty to protect Ralph, the newspaper deliverer who uses Sally’s yard as a shortcut, Betty, a friend who plans to visit Sally for lunch, and Heather, a beauty salon client with an appointment that week. (Assumptions we will make to make a complex case study less open-ended: Ralph is not a minor child enticed onto Sally’s property by an attractive nuisance, he is an adult and only tempted to cut across her lawn to shorten his paper route; and Betty has been invited by Sally to visit or visits often enough to have an assumed open invitation to stop by.)
A property owner owes a duty of care to people on the owned property, but degree of the property owner’s responsibility varies with the type of visitor (Twomey, 2011):
- A trespasser is an uninvited, unexpected and unauthorized person on the property. A property owner can’t knowingly inflict harm to a trespasser (though “Castle Doctrine” laws vary on the legality of confronting an intruder in one’s house with lethal force), but the property owner is not required to warn trespassers about any dangers. (The “attractive nuisance” doctrine is an exception, where property owners are required to take reasonable care to keep curious trespassing minor children—especially very young children–from being harmed by an object or condition on the property.) (Twomey, 2011; Strickland, 2009)
- A licensee is a person who has been invited by the property owner to visit the property. A property owner has a duty to alert licensees of any hazards that may not be obvious. The example given in class was a loose step on a patio or deck; a property owner is required to tell guests about the dangerous step (Strickland, 2009).
- An invitee is a person who is on a property specifically to do business there. A property owner must, as with licensees, warn invitees about any potential dangers. The example given in class was a supermarket with a spill on its floor: customers must be alerted to the danger and the spill blocked off until the floor is clear and dry again (Strickland, 2009).
In this case, Sally’s tree and power line hazard was not due to her personal negligence as far as we know (we’ll assume that she kept any branches that were obvious hazards on her trees trimmed back regularly), but due to bad weather. Bad weather-related conditions can be considered the property owner’s fault if they are considered foreseeable and if the dangerous condition is judged to have been preventable. If Sally has had the opportunity to be on the premises and inspect them, and is aware there was a storm, she will have to show that she took reasonable care that her property was not affected by the bad weather. We will assume that she is aware of the tree and electrical line, and that this is not something that happened after she inspected her property following the storm, and that she has not been absent the entire time and thus unaware of the weather or the tree and power line.
Most bad weather-related cases involving disputes between property owners and visitors involve snow and ice. In Thomas v. Ohio University, Wesley Thomas’ 2000 Ford Taurus was damaged by chunks of ice and snow in the Gamertsfelder Hall parking lot. It is not stated in the case whether Thomas was a student at Ohio University, but it is strongly implied he was not, as he is called a visitor. Citing Restatement of the Law (Second), Torts (1965), Section 342, the court ruled in favor of the university, stating that it was not a breach of duty to remove a natural accumulation of snow and ice from campus buildings. The court discussed trespassers, licensees and invitees, determining that Thomas was not a trespasser but a licensee or invitee. It then claimed that the university’s duty of care was similar, in this case, whether Thomas was a licensee or invitee. A trespasser, said the court, “is one who enters property without invitation or permission, purely for his or her own purposes or convenience.” An invitee is on the property by invitation with permission for purposes which the property owner would find beneficial, and a licensee is on the property with permission for purposes that the licensee finds beneficial. The court did not find that the university had acted with “heedless indifference” to the safety of visitors (Court of Claims of Ohio, 2011).
In Hoffner v. Lanctoe, Charlotte Hoffner was a member of Fitness Xpress gym, which had only one entrance. The building, parking lot and sidewalk were all owned and maintained by the owners, the Lanctoes. The Lanctoes were determined to be responsible for removing snow from the parking lot and sidewalk, per their lease agreement. Hoffner admitted that she saw a patch office in front of the Fitness Xpress entrance (therefore the court held the ice to be an “open and obvious hazard”) but she had no alternate option if she wished to enter the gym as an invitee (due to her paid membership). She claimed that the ice “didn’t look like it would be that bad,” “it was only just a few steps,” and “I thought that I could make it.” She didn’t; she slipped, fell, and injured her back. Lower courts had sided with Hoffner’s argument that, as invitee, the sidewalk should have been salted for safety. The Supreme Court of Michigan disagreed, noting that Michigan, “being above the 42nd parallel of north latitude, is prone to winter,” and that a reasonable person should be aware of the possibility that walking surfaces might be slick. Given that Hoffner admitted that she had seen the patch of ice, she did not prevail (Supreme Court of Michigan, 2012).
In Buhalis v. Trinity Continuing Care Services, a Michigan court again dealt with a plaintiff, Mary Buhalis, who slipped on a patch of ice on a patio outside a building owned by Trinity. Buhalis, a woman in her late 80s, rode her adult tricycle to Trinity, a nursing home, to donate a bag of clothes. Buhalis was a frequent visitor to Trinity, and thus presumed to be an invitee, as her visits were motivated by charitable impulses and Trinity welcomed Buhalis and benefited from her visits. There was a cleared walkway, but Buhalis opted to cross the patio, which was not clear, and which was not used by Trinity during the winter. Trinity had also posted a sign (“SIDEWALKS, PARKING LOTS AND COMMON AREAS MAY BE WET, SNOWCOVERED [SIC] AND SLIPPERY”) which Buhalis was aware of. Buhalis did not prevail, though I assume the court had sympathy for the injuries suffered by an elderly woman who was hurt while performing a charitable act, because the sign was posted, there were cleared walkways available, and Buhalis (as the court noted) had experienced 85 previous Michigan winters and should be presumed to be familiar with what a Michigan winter was like, including the potential snow and ice hazards. The court determined that a “reasonably prudent” person would have foreseen the possibility of slipping on a patch of ice (Court of Appeals of Michigan, 2012).
In Rorie v. St. Mary Roman Catholic Church, 2010 WL 877545 (Mich. App. 2010), a Michigan court did not hold the church liable for Ms. Rorie’s injuries, which were sustained when she tripped over a speed bump in the parking lot. Rorie acknowledged that she had driven over the speed bump often, and thus knew it was there. Her argument was that it should have been painted in a contrasting color to make it more visible at night. The court disagreed; even though Rorie was an invitee, she was aware of the speed bump and that it was dark, so the condition of the property’s speed bump feature should have been “open and obvious” to her, and the injuries both foreseeable and preventable (Hammar, 2012).
In Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal. App. 4th 387 [9 Cal. Rptr. 2d 124], A Griggs Construction employee, Pete Sam Krongos, was electrocuted when the bucket he was working in was accidentally swung into an overhead power line by the operator of the boom truck, Clinton Morrow. Krongos was holding the boom cable, attached to a bundle of timber, and the cable made contact with the power line. Dana L. Whitaker, who was the construction yard lease-holder, was sued by Krongos’ survivors, as was Pacific Gas & Electric Company (PG&E), who had installed the overhanging power line. (The boom truck operator, Morrow, who steered Krongos into the power line when the sun got in his eyes, was apparently not sued.) Krongos’ survivors argued that Whitaker should have protected workers on his job site from power lines, and PG&E was also cited and criticized. PG&E had, in fact, installed the lines four feet higher than required, posted high voltage signs to warn visitors to the area, and properly equipped the wire with safety features. The court wondered how PG&E could be held liable when it complied with all standards and had not been informed of any construction-related activities near its line (in my state, you are urged to call utility companies if you plan to do any digging or construction near their pipes or lines). PG&E was determined not to be liable, but Whitaker was not as lucky, though the court noted that they felt that a jury would be unlikely to find Whitaker negligent (White, 1992).
In Alcaraz v. Vece, Gilardo Alcaraz stepped into a water meter box and was injured. The box had a broken or missing cover, and was located in the lawn in front of the property he rented. The defendants, his landlords, then sued City of Redwood City and its water department, alleging that these cross-defendants owned the meter box and the strip of land where it was located, and thus should be held responsible for Alcaraz’ injuries. The court felt that the defendants had the burden of duty of care because they mowed and maintained the city’s strip of land and should have posted a warning and/or barrier around the meter box. The landlords were found liable because they fenced the strip of lawn surrounding the meter box after Alcaraz’ injuries, and the court determined that this indicated that they “exercised control over” that bit of lawn–treated the city’s strip of land as if it were part of or an extension of their own front yard–and thus had assumed responsibility for the unsafe meter box located there. A dissenting judge felt that this punished the landlords for being good neighbors and not letting the strip of land get overgrown and unsightly, but the decision in favor of Alcaraz held (Supreme Court of California, 1997).
In Harris v. University of South Carolina, determining whether Harris was an invitee or licensee took up the bulk of the court’s time. Karen Harris visited her son, Daniel Russo, on Pritchard Island, an undeveloped barrier island managed by the university and used for research, preservation of flora and fauna (e.g., sea turtles), and classes. Harris slipped and broke her ankle badly (requiring surgery and physical therapy) when climbing boardwalk stairs with her arms full of a beach chair, book, and a drink can. The university, Harris said, had not posted warnings about the stairs, and she wanted damages for lost wages, medical bills, future medical bills, “loss of enjoyment of life, […] mental anguish” and physical pain. Harris lost, and appealed. Harris argued on appeal that she was an invitee, but neither she nor her son, Russo, could recall if she asked to come visit or if he directly invited her to come. The university contends that Harris was a licensee, and the court agreed; it was not normal for people to visit the island for recreational purposes only, as it was a research, work or education site. Harris did not work or participate in educational endeavors. Harris lost again on appeal (Lockemy, 2011).
In our case study, it appears that Ralph is an uninvited licensee (if Sally is one of the customers on his newspaper route) or a trespasser. Betty is a licensee by invitation (licensee) though her status might be challenged if she goes to the salon entrance rather than the front door. Sally has not, as far as we know, invited Betty to her salon. The invitation to meet for lunch is personal, not business-related, so Betty shouldn’t be on the wrong side of the house. Heather is a business invitee. (I’m using more precise terms taken from a chart published by The Florida Bar; see Appendix.) Invitees generally require the highest degree of reasonable care, and trespassers the lowest. In all three cases, however, a tree limb resting on a power line poses a foreseeable hazard, and, as a property owner (especially as a business owner), Sally will be expected to inspect the property after a bad storm for hazards. In Alcaraz v. Vece, the court specifically addressed the responsibility of a property owner where power lines are concerned:
If a live power transmission line falls, creating a hazard, the possessor of the property on which the power line has fallen, who knows of the hazard, cannot escape liability for injuries to persons who enter the land and encounter the power line simply because the land possessor does not own the power line and lacks the authority to disconnect the line or remove it. A possessor of land who knows of the hazard would have a duty to erect a barrier or warn persons entering the land of the danger, whether or not the possessor of the land has the authority to eliminate the hazard (Supreme Court of California, 1997).
Therefore, regardless of the status of Ralph, Betty and Heather, Sally owes all of them a duty of care that would include calling the electric company and reporting the tree resting on the power line. Sally would be wise to block off access to the hazard and to post signs with warnings.
Coincidentally, I have just gone through this exact scenario after a not-very-bad storm a few weeks ago, and lived in the only house affected in my neighborhood–ergo the power company was not being stretched thin with a lot of houses without power or storm damage to handle at once. I can report that it will apparently take a couple of weeks and dozens of phone calls to the power company for them to take the problem seriously and actually come out to remove the tree branch and fix the electrical line. I suppose I am lucky that no one was injured, and that my house did not actually catch fire or have the power line yanked out of the wall. If someone had been hurt, I hope that the multiple calls for assistance that the home owner and I both made would help keep me or the property owner from being held liable if I or she were sued, as we both lack the ability or authority to remove a two-foot in diameter branch or shift a live power line, and could not force the power company to fix the problem sooner than it did.
Types of Visitors and Property Owner’s Duties
Image © FloridaBar.org
Twomey, D. P., and Jennings, M. M. (2011) Anderson’s Business Law and the Legal Environment. Retrieved from http://digitalbookshelf.southuniversity.edu
Court of Claims of Ohio. (2011). Thomas v. Ohio Univ., 2011-Ohio-1946. Retrieved from http://ohio-supreme-court.vlex.com/vid/thomas-v-ohio-univ-274729655
HG.org. (2012). Premises Liability Law. Retrieved from http://www.hg.org/premises-liability.html
Hammar, R.R. (2012). Are We Always Liable for Injuries on Church Property? Liability depends, in part, on the nature of the victim’s visit. Retrieved from http://www.churchlawandtax.com/private/library/viewarticle.php?aid=154
LawQA. (2012, August 23). Am I liable if a person trespasses on my property and get injured? Retrieved from http://www.lawqa.com/qa/am-i-liable-if-person-trespasses-on-my-property-and-get-injured
Strickland, W. H. (2009, December). Premises Liability: A Notable Rift in the Law of Foreseeable Crimes (originally published in The Florida Bar Journal, December, 2009; Volume 83, No. 11). Retrieved from http://www.floridabar.org/divcom/jn/jnjournal01.nsf/Author/F5EDDA415D032B218525767E0071DA90
Supreme Court of Michigan. (2012, July 31). Hoffner v. Lanctoe. Retrieved from http://caselaw.findlaw.com/mi-supreme-court/1607928.html
Court of Appeals of Michigan. (2012, May 29). Buhalis v. Trinity Continuing Care Services. Retrieved from http://caselaw.findlaw.com/mi-court-of-appeals/1602246.html
White, P., Judge (Superior Court of Humboldt County, California). (1992, May 27). Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal. App. 4th 387 [9 Cal. Rptr. 2d 124]. Retrieved from http://law.justia.com/cases/california/caapp4th/7/387.html
Supreme Court of California. (1997, January 31). Alcaraz v. Vece. Retrieved from http://caselaw.findlaw.com/ca-supreme-court/1288675.html
Lockemy, Judge (South Carolina Court of Appeals). (2011, February 3). Harris v. University of South Carolina. Retrieved from http://law.justia.com/cases/south-carolina/court-of-appeals/2011/4789.html