AMI 1404 Duty to Warn of Danger

The Committee has not drafted an instruction on this subject because a model instruction covering this duty is impractical.

First, the duty would vary with respect to the extent of the danger, whether the injured party be an invitee, licensee, or trespasser, whether he be a child or a person of mature years, etc.

Second, there is no precedent in Arkansas case law for an instruction which singles out this particular duty. The only two cases referring to the duty to warn of danger involve an adult rightfully on the premises. In Arkansas Power & Light Co. v. Thompson, 196 Ark. 1012, 120 S.W.2d 709 (1938), the power company erected a guy wire in a front yard with permission of the owner of the premises but while the tenant-plaintiff was absent. The tenant returned home after dark, went into the yard to get some bedclothing off the line, and stumbled over the stob to which the guy wire was attached. The tenant had no knowledge of the construction. The failure to warn plaintiff was incorporated in an approved instruction which contained a number of other elements. In Southwestern Gas & Electric Co. v. Murdock, 183 Ark. 565, 37 S.W.2d 100 (1931), the garageman, Murdock, was injured because a 110 volt line in his garage became charged with about 350 volts while the power company was doing some construction work in the vicinity. The last sentence of the decision is the only place where the duty to warn is mentioned: “It was the duty of the appellant to protect appellee from the injury while constructing its wires, and, if there were a danger, to warn him.”