AMI 1104 Duty Owed to Invitee

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

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

In a case involving a foreign object or substance, use AMI 1106.

Use the bracketed sentence where there is substantial evidence that there was knowledge on the part of the invitee of the condition that creates risk of injury, or where there is substantial evidence that such condition was open and obvious. For instances where the last parenthetical phrase of the bracketed sentence is appropriate, see cases cited in the Comment.

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 is based on the holding in Davis v. Safeway Stores, 195 Ark. 23, 110 S.W.2d 695 (1937).

The bracketed sentence of the instruction states the “obvious danger rule,” e.g., Jenkins v. International Paper Co., 318 Ark. 663, 887 S.W.2d 300 (1994), as well as its recognized exceptions, Carton v. Missouri Pac. R. Co., 303 Ark. 568, 798 S.W.2d 674 (1990); Kuykendall v. Newgent, 255 Ark. 945, 504 S.W.2d 344 (1974).

A possessor of land owes a duty to a business invitee to use ordinary care to protect him, not only from dangers of which the possessor knows, but also against those which, with reasonable care, he might discover. DeVazier v. Whit Davis Lumber Co., 257 Ark. 371, 516 S.W.2d 610 (1974).

The liability of the owner or operator of a business to an invitee is not necessarily confined to his property boundary lines. Ollar v. Spakes, 269 Ark. 488, 601 S.W.2d 868 (1980). See also AMI 1110. However, before extraterritorial liability attaches, it must be shown that the owner or operator had actual or constructive knowledge of the danger to his invitees. When an owner or operator learns or should have learned of a dangerous condition existing adjacent to his property and fails to attempt to correct the condition or to warn the invitees of such danger, he may be found negligent. Ollar, supra.

The proprietor of a tavern or bar is under a duty to use reasonable care to protect patrons from reasonably foreseeable injury at the hands of other patrons. Industrial Park Businessmen's Club, Inc. v. Buck, 252 Ark. 513, 479 S.W.2d 842 (1972).

A contractor who, on behalf of a possessor of land, erects a structure or creates a condition on the land is subject to the same liability and has the same defenses as the possessor while the work is in charge of the contractor. DeVazier, supra. However, liability for harm does not continue after control of the condition by the contractor has been terminated. DeVazier, 257 Ark. at 375, 316 S.W.2d at 613.

In Baxter v. Grobmyer Bros. Const. Co., 275 Ark. 400, 631 S.W.2d 265 (1982), the court discussed DeVazier., supra, and held it was not error to refuse to give AMI 1204 with AMI 1104 under the circumstances of that case.

A tenant is not an invitee on a landlord’s premises, since the tenant has a right equal to that of the landlord to exclusive possession of the property. Glasgow v. Century Property Fund XIX, 299 Ark. 221, 772 S.W.2d 312 (1989).

In Tucker v. Sullivan, 307 Ark. 440, 821 S.W.2d 470 (1991), the court held that an invitee is either a business visitor or a public invitee, citing Restatement (Second) of Torts § 332 (1965). The court distinguished between public invitees and business invitees in Lively v. Libbey Memorial Physical Medicine Center, Inc., 311 Ark. 41, 841 S.W.2d 609 (1992).

The duty owed to a business visitor and a public invitee is the same. Young v. Paxton, 316 Ark. 655, 873 S.W.2d 546 (1994).

The duty owed by an owner or occupier is usually satisfied where the condition creating the danger is either known by the invitee or is open and obvious to the invitee. Young, supra; Jenkins v. International Paper Co., 318 Ark. 663, 887 S.W.2d 300 (1994) (affirming summary judgment where the evidence was that the invitee was aware of the substance he slipped and fell on and that the premises owner was not aware of the condition); but see Dollar Gen. Corp. v. Elder, 2020 Ark. 208 (2020) (affirming a jury verdict in favor of invitee who slipped and fell on wet concrete whereby there was substantial evidence that the condition was unreasonably dangerous and that the texture of the concrete prevented the invitee from determining the danger). However, under some circumstances an owner or occupier may owe a duty to an invitee despite the knowledge of the invitee. Carton, supra (invitee forced, as a practical matter, to encounter a known or obvious risk in order to perform his job); Kuykendall, supra (landowner should have anticipated that the dangerous condition would cause physical harm to one required to use the entrance way notwithstanding the known or obvious danger).

Other exceptions to the obvious danger rule are discussed in the authorities cited in Jenkins., supra; and Kuykendall, supra.

As to a social guest, see Comment to AMI 1107.

Boren v. Worthen Nat'l. Bank of Arkansas, 324 Ark. 416, 921 S.W.2d 934 (1996), presents the issue of a bank’s liability for criminal acts of third persons for injuries to the bank’s customers while using an ATM machine. The court adopted the “prior similar incidents test” for determining the issue of foreseeability.

A security company owes no duty to persons not on the premises that the company was guarding. Tackett v. Merchant's Security Patrol, 73 Ark. App. 358, 44 S.W.3d 349 (2001).

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.