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AMI1107Distinction Between a Trespasser or Licensee and an Invitee—Duty Owed to Each

Arkansas Supreme Court Committee On Jury Instructions—Civil

Ark. Model Jury Instr., Civil AMI 1107
Arkansas Model Jury Instructions--Civil
December 2017 Update
Arkansas Supreme Court Committee On Jury Instructions—Civil
Chapter 11. Owners and Occupiers of Land
AMI 1107 Distinction Between a Trespasser or Licensee and an Invitee—Duty Owed to Each
One question in this case is whether was a [trespasser][licensee] or an invitee. The reason it is necessary for you to distinguish between the two is that an [owner][occupant] of property owes a different duty to an invitee from that which [he][she] owes to a [trespasser][licensee].
[A trespasser is a person who goes upon the premises of another without permission and without an invitation, express or implied.]
[A licensee is a person who goes upon the premises of another with the consent of the (owner)(occupant) for [his][her] own purposes] [and not for the mutual benefit of [himself][herself] and the (owner)(occupant)] [and not for a purpose connected with the business which the (owner)(occupant)(conducts)(permits to be carried on)]. [The (owner's)(occupant's) consent to the licensee's presence upon the premises may be express or may be implied from the circumstances under which the licensee enters the premises.]
An invitee is a person who goes upon the premises of another [for a purpose connected with the (owner's) (occupant's) business][for a purpose connected with an activity which the (owner) (occupant) (carries on) (permits to be carried on) on the premises][for a purpose mutually beneficial to [himself][herself] and the (owner) (occupant)][and][by the invitation of the (owner) (occupant)]. [The invitation may be express or may be implied from the circumstances under which the person enters the premises.]
(A) An [owner][occupant] of property owes to a trespasser only a duty not to cause [him][her] injury by gross negligence or willful or wanton conduct.
(B) An [owner][occupant] of property owes a licensee no duty until [his][her] presence on the premises is known or reasonably should be known. Then the [owner][occupant] owes the licensee only a duty not to cause [him][her] injury by willful or wanton conduct. [If, however, the (owner)(occupant) knows that a licensee is in a position of danger, [he][she] is under a duty to use ordinary care to avoid injury to the licensee.] [If, however, the (owner)(occupant) knows or has reason to know of a condition on the premises which is not open and obvious and which creates an unreasonable risk of harm to licensees, [he][she] is under 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.]
(C) The [owner][occupant] of property [has a duty to use ordinary care to maintain the premises in a reasonably safe condition for an invitee] [owes an invitee a duty to use ordinary care for [his][her] safety]. [No such duty exists, however, if the (activity upon)(or)(condition of) the premises which creates the danger was known by or obvious to an invitee (unless the (owner)(occupant) should reasonably anticipate that the invitee would be exposed to the danger despite [his][her] knowledge of it or its obvious nature).]
NOTE ON USE
This instruction is to be used when the injured person's status upon the premises is in dispute.
Use the first bracketed clause in paragraph (C) when the injury was caused by the condition of the premises. Use the second bracketed clause when the injury was caused by the possessor's activities and was causally related to a condition on the premises.
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).
COMMENT
Much of the substantive law supporting this instruction is set forth in the Comments to AMI 1102, 1103, and 1104.
When an invitee goes beyond the boundaries of the invitation, he ceases to be an invitee and becomes a licensee or trespasser. Daniel Constr. Co. v. Holden, 266 Ark. 43, 585 S.W.2d 6 (1979); Husted v. Richards, 245 Ark. 987, 436 S.W.2d 103 (1969).
An owner or occupant of land is under a duty to exercise ordinary care to keep the premises reasonably safe for an invitee. Davis v. Safeway Stores, 195 Ark. 23, 110 S.W.2d 695 (1937). A licensee or trespasser takes the premises as he finds them. Webb v. Pearson, 244 Ark. 109, 424 S.W.2d 145 (1968); Knight v. Farmers' & Merchants' Gin Co., 159 Ark. 423, 252 S.W. 30 (1923) (although invited to the premises, plaintiff remained a licensee because his purpose was for his sole benefit as a shareholder of the owner of the premises).
A landowner owes a duty to a trespasser or licensee to refrain from wantonly or willfully causing injury. Guthrie v. Tyson Foods, Inc., 285 Ark. 95, 685 S.W.2d 164 (1985).
It is error to give paragraph B of this instruction when the injury results only from the possessor's activity and is not causally related to a condition of the premises. Tatum v. Rester, 241 Ark. 1059, 412 S.W.2d 293 (1967), supplemental opinion, 242 Ark. 271, 412 S.W.2d 293 (1967). See also Linxwiler v. El Dorado Sports Center, Inc., 233 Ark. 191, 343 S.W.2d 411 (1961) (error to give this instruction if the condition of the premises had nothing to do with the plaintiff’s injuries).
A person who is lawfully on the premises of an innkeeper is not an invitee as a matter of law under every conceivable circumstance, and there are situations that warrant submitting the issue to the jury. Holiday Inns, Inc. v. Drew, 276 Ark. 390, 635 S.W.2d 252 (1982).
A tenant is not an invitee on a landlord's premises since he has an equal right to that of the landlord to exclusive possession of the property. Wheeler v. Phillips Development Corp., 329 Ark. 354, 947 S.W.2d 380 (1997); Glasgow v. Century Property Fund XIX, 299 Ark. 221, 772 S.W.2d 312 (1989).
A landlord has no duty to remove hazards such as ice and snow from parts of the premises in common use by the tenants. Glasgow, supra.
A live-in companion was held to be a licensee notwithstanding substantial contributions to household expenses. Tucker v. Sullivan, 307 Ark. 440, 821 S.W.2d 470 (1991).
The duty owed by an owner or occupier is usually satisfied where the condition creating the danger is either known by or obvious to the invitee. Jenkins v. International Paper Co., 318 Ark. 663, 887 S.W.2d 300 (1994); Young v. Paxton, 316 Ark. 655, 873 S.W.2d 546 (1994) (duty met where plaintiff was well apprised of risk involved in cutting tree limbs prior to getting injured while cutting a limb); Ramsey v. American Auto. Ins. Co., 234 Ark. 1031, 356 S.W.2d 236 (1962) (landowner’s duty was satisfied where the danger of loading 1,200-lb. wastepaper bales was obvious, whether loaded by hand or by mechanical means). The open and obvious danger rule is inapplicable where, as a practical matter, the invitee is required to encounter the hazard even though he knows of it, or it is of an obvious nature. 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) (landowner should have anticipated the dangerous condition of accumulated ice and snow on sloping entrance would cause physical harm to one required to use the entrance way notwithstanding the known or obvious danger). There is no duty to warn of obvious dangers or risks that the licensee is expected to recognize. Nucor Corp. v. Kilman, 358 Ark. 107, 186 S.W.3d 720 (2004). A landowner who discovers a licensee in peril owes a duty of ordinary care to prevent injury to the licensee. Lively v. Libbey Memorial Physical Medicine Center, Inc., 311 Ark. 41, 841 S.W.2d 609 (1992).
A number of other exceptions to the obvious danger rule are discussed in the authorities cited in Jenkins, supra, and Kuykendall, supra.
An owner has a duty to warn a licensee of hidden dangers if the licensee does not know or have reason to know of the conditions or risks involved. Heigle v. Miller, 332 Ark. 315, 965 S.W.2d 116 (1998).
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