AMI 1103 Duty Owed to Licensee

Use this instruction when there is no dispute that the injured person was a licensee. If the status is in dispute use AMI 1107.

For cases involving a landlord’s agreed or assumed duty, use AMI 1105.

The nature of the injured person's activities may require modification of this instruction. See Ark. Code Ann. § 18-11-301 (recreational users) and Ark. Code Ann. § 18-60-107 (persons involved in the acquisition or purchase of agricultural products).

This instruction was cited with approval in Tucker v. Sullivan, 307 Ark. 440, 445, 821 S.W.2d 470, 472 (1991), and it states the rules of law discussed in Lively v. Libbey Memorial Physical Medicine Center, Inc., 311 Ark. 41, 47, 841 S.W.2d 609, 612 (1992) and Webb v. Pearson, 244 Ark. 109, 111, 424 S.W.2d 145, 146 (1968).

The last bracketed sentence of the instruction is based upon the concept contained in the Restatement (Second) of Torts § 342 (1965) that an owner or occupant who knows or has reason to know of a condition on the premises that is not open and obvious and creates an unreasonable risk of harm to licensees has a duty to use ordinary care to make the condition safe, or to warn those licensees who do not know or have reason to know of the danger. The court by obiter dictum in Dorton v. Francisco, approved this rule. 309 Ark. 472, 478, 833 S.W.2d 362, 365 (1992). This duty to warn of hidden dangers or risks is also noted in Young v. Paxton, 316 Ark. 655, 660–61, 873 S.W.2d 546, 549 (1994), and Lively, 311 Ark. at 47, 841 S.W.2d at 612. The Committee believes these decisions reflect a modification of the harsher rule placing licensees in the same category with trespassers. See W. Page Keeton, Prosser & Keeton on Torts 415 (5th ed., 1984).

Ordinarily the only duty owed to a licensee is not to willfully or wantonly injure him after his presence is known, Webb, 244 Ark. at 111, 424 S.W.2d at 146; Cato v. St. Louis Southwestern Ry. Co., 190 Ark. 231, 233, 79 S.W.2d 62, 63 (1935), or should be known. Keeton, jan, § 60. But there is a duty to exercise ordinary care toward a licensee in a position of peril, Arkansas Short Line v. Bellars, 176 Ark. 53, 62–63, 2 S.W.2d 683, 686 (1928), after his presence in such perilous position is known or if, by the exercise of reasonable care, it could have been discovered in time to avoid the injury. Mo. Pac. R.R. Co. v. Thomas, 197 Ark. 565, 569–70, 124 S.W.2d 820, 821 (1939).

A question might be raised whether a landowner could willfully or wantonly injure a person whose presence was not actually known to the landowner, though it should have been known. In St. Louis-S. F. Railway Co. v. Bley, the court indicated that in such a situation there could be no willful injury. 168 Ark. 814, 816, 271 S.W. 455, 455–56 (1925). The contrary view, however, was expressed in Missouri Pacific Railroad, 197 Ark. at 569–70, 124 S.W.2d at 821. The Committee regards the latter as the better view. If, for example, a landowner knew that licensees were often to be found at a certain place upon his land, he might be liable for willful or wanton conduct if he engaged in a highly dangerous activity, such as blasting, without first ascertaining that no licensees were actually present. In Daniel Construction Co. v. Holden, the Arkansas Supreme Court noted this comment and stated, “The committee regarded this as the better view, and we do, too.” 266 Ark. 43, 49, 585 S.W.2d 6, 9–10 (1979).

In Tucker, a live-in companion was held to be a licensee notwithstanding substantial contributions to household expenses because her presence was primarily social. 307 Ark. at 442–43, 821 S.W.2d at 471.

In Bader v. Lawson, the court held that the licensee standard was applicable to a child social guest, declining to confer invitee status based upon the argument that entertaining and looking after another’s children was an economic benefit when the children’s presence was primarily social. 320 Ark. 561, 564–65, 898 S.W.2d 40, 42–43 (1995). However, Bader was distinguished in Anderson v. Mitts, and the court held that the standard of ordinary care was applicable because the property owner had accepted responsibility for supervising the child. 87 Ark. App. 19, 25, 185 S.W.3d 154, 158 (2004).

In King v. Jackson, the court held that the danger presented by shoes left on a front porch is not a hidden danger that would create a duty to warn. 302 Ark. 540, 542, 790 S.W.2d 904, 905 (1990).

In Baldwin v. Mosley, the court held that there could be no willful or wanton injury or duty to warn a child under the supervision and control of his mother when the property owner was not present at the time of the injury. 295 Ark. 285, 288, 748 S.W.2d 146, 147–48 (1988).

In Delt v. Bowers, the court held that a picketing union member was, at most, a licensee, under the undisputed facts of the case. Therefore, the court did not address the question whether precautions for picketing safety were reasonable in relation to the foreseeable harm. 97 Ark. App. 323, 327, 249 S.W.3d 162, 166 (2007).

An owner owes no duty of care to keep premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for recreational purposes without charge (admission fee) unless the owner maliciously (but not merely negligently) fails to guard or warn against an ultra-hazardous condition or activity actually known to the owner to be dangerous. Ark. Code Ann. §§ 18-11-301 et seq.