Private Dwellings

Owners of private dwellings owe any non-trespassing entrant a duty of reasonable care[i].  The duty of reasonable and ordinary care requires keeping the property reasonably safe for the benefit of the invitee.

A host who invites a social guest to his/her premises owes the guest the duty[ii]:

  • to exercise ordinary care not to cause injury to his/her guest by any act of the host or by any activities carried on by the host while the guest is on the premises, and
  • to warn the guest of any condition on the premises which is known to the host and which one of ordinary prudence and foresight in the position of the host should reasonably consider dangerous, if the host has reason to believe that the guest does not know and will not discover such dangerous condition.

 

Where one is invited to come upon the promises of the owner or occupier as a guest for social purposes, the guest is, in a legal sense, a mere licensee, even though s/he was expressly invited[iii].

A possessor owes to a bare licensee only a duty to exercise reasonable care to disclose to him/her dangerous defects which are known to him/her and likely to be undiscovered by the licensee[iv].

The admonition to the host is to warn the guest of any condition of the premises which is known to the host and which one of ordinary prudence and foresight in the position of the host should reasonably consider dangerous, if the host has reason to believe that the guest does not know and will not discover such dangerous condition.

While the duty owed to an invitee is that of ordinary care to keep the premises in a reasonably safe condition, the requirements of ordinary care vary with the circumstances of each case.

In some jurisdictions, care required of the owner of a private home clearly is less than that required in a business establishment[v].  In other jurisdictions, there is no distinction between the duties owed an invitee by an owner of private premises, as compared to the duty owed by the owner of a commercial establishment[vi].

The duty of a premises owner is not to insure against the possibility of an accident on his/her premises, but rather to act reasonably in view of the probability of injury to others[vii].  This requires persons to maintain property in their possession and control in a reasonably safe condition[viii].

In determining whether a defendant in a premises liability case met his/her burden of reasonable care under the circumstances to all non-trespassing entrants, the following facts should be considered[ix]:

  • the foreseeability that an injury might occur;
  • the severity of injury;
  • the time, manner and circumstances under which the injured party entered the premises;
  • the normal or expected use made of the premises; and
  • the magnitude of the burden placed upon the defendant to guard against injury.

 

Several states have special rules for invited social guests and others limit landowner liability via recreational use statutes, or employ a distinction between active and passive negligence[x].

An owner who lacks actual or constructive notice of an unsafe condition and who does not direct or control the work being performed is not liable for common-law negligence[xi].

Thus, a licensee who slips and falls on a freshly washed floor cannot recover unless there is proof that the washing of the floor created a dangerous condition or that the floor was inherently dangerous and that this fact was unknown to the licensee[xii].

If a homeowner knows of a guest’s incapacity, s/he owes such guest a duty of care which takes the incapacity into consideration, but failure to act in accordance with such duty amounts to negligence only if it proximately, rather than remotely, caused the guest’s injury[xiii].

[i] Mallet v. Pickens, 206 W. Va. 145 (W. Va. 1999).

[ii] Rapoport v. Hume, 157 N.E.2d 889 (Ohio Ct. App., Mahoning County 1957).

[iii] Ralls v. Caliendo, 198 Kan. 84 (Kan. 1967).

[iv] Rapoport v. Hume, 157 N.E.2d 889 (Ohio Ct. App., Mahoning County 1957).

[v] Hunter v. Alfina, 112 Ill. App. 2d 432 (Ill. App. Ct. 1st Dist. 1969).

[vi] Curtis v. DeAtley, 104 Idaho 787 (Idaho 1983).

[vii] Lacour v. Cumis Ins. Soc., 349 So. 2d 953, 955 (La.App. 1 Cir. 1977).

[viii] Alcaraz v. Vece, 14 Cal. 4th 1149 (Cal. 1997).

[ix] Mallet v. Pickens, 206 W. Va. 145, 153 (W. Va. 1999).

[x] Id.

[xi] Clayson v. Oldfield, 181 A.D.2d 993 (N.Y. App. Div. 4th Dep’t 1992).

[xii] Barrows v. Barrows, 256 Mont. 78 (Mont. 1992).

[xiii] Brodeur v. Desrosiers, 505 A.2d 418, 423 (R.I. 1986).


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