Kirk Willis

1
Introduction
Invitee or trespasser
Kirk Willis member
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Invitee
Damages
Licensee
Trespasser
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• Duty

• Duty

• Duty

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Control

• With respect to condition of the premises,
  defendant can be found negligent if

• What creates the Duty?
• Control!

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Control Individuals

• Owner/occupiers of land
• Employee
• Land Owner

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Duty

• Create Duty
• Relationship Duty

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Five Basic Exceptions

• Landlord contracts to make repairs

• Landlord fails to advise of dangerous conditions

• Landlord retains part of the premises to control

• Landlord retains property, but access is
  necessary for lease contract

• Landlord makes negligent repairs

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Landlord-Tenant Relationship
Section 92.153 provides landlord has a duty
(without the necessity of a request by the
tenant) to provide

• A window latch on each exterior window

• A doorknob lock or keyed deadbolt on each door

• A sliding door pin on exterior sliding glass

• Security bars on each exterior sliding glass door

• A keyless bolting device and door viewer on
  exterior doors

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Invitee
Invitee is a person who is on the premises at
the expressed or implied invitation of the owner
or occupier of the premises.

• An employee is always considered an invitee as
  a matter of law

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Licensee
A Licensee is a person who is on the premises
with permission of the owner but without an
expressed or implied invitation.
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Licensee - Test

• General test for determining a licensee is as
  follows

• Whether a person is on the premises for his own
  convenience or for conducting business with
  someone other than the owner of the premises
  licensee

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Licensee - Negligence

• With respect to condition of the premises,
  defendant can be found negligent if

• The condition posed an unreasonable risk of harm
• Defendant had actual knowledge of the danger
• Plaintiff did not have actual knowledge of danger
• Defendant failed to exercise ordinary care to
  protect/warn

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Trespasser
Trespasser is a person on the property of
another without any right, lawful authority or
expressed or implied invitation.
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Attractive Nuisance

• Attractive nuisance doctrine suggests that an
  owner of property can be liable for bodily harm
  to young children who are trespassers if

• The condition maintained is one upon which owner
  knows, or should know, that young children will
  trespass
• Owner knows, or should know, that young children
  will trespass
• Children, because of their youth, do not
  appreciate the risk
• The utility by owner of maintaining is slight
  relative to the risk

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Control

• Redinger and the General Contractor

• Statutory Duty

• Independent Contractors/Negligent Hiring and
  Retention

• Premises Security Cases

• Control of What?

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Recovery of four

1. Defendant had actual or constructive knowledge of
   some condition on the premises
2. Injury from condition
3. General negative
4. Foreseeable criminal acts

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Bad Idea

• Jumping off balcony into pool
• Frozen turkey

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Premises

• Constructive knowledge
• Actual knowledge

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Unreasonable Risk

• Tiger show
• NASCAR
• Janet Jackson

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Change in Status

• Duty is what
• Jiffy Lube Tube

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Duty by Statute

• To protect a particular class or persons

• From a particular type of harm

• Plaintiff is member of that class

• Plaintiff has suffered the particular type of
  harm intended to be protected

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Protection Statute

• Protect particular class
• From a particular class
• Plaintiff is member of class
• Harm contemplated

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Foreseeability Concerning Criminal Acts of Third
Parties

• Two Prong Test

• Did the landlord realize (or should have
  realized) the likelihood that such an act would
  occur?

• Did the landlord have reason to know from past
  experiences of the likelihood of the conduct
  which would have endangered the safety of
  invitees?

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Criminal Acts of Third Party

• Duty?
• Or
• No Duty?

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Independent Contractors

• Duty?
• Or
• No Duty?

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Affirmative Defenses

• New, Intervening, Interceding and/or Superseding
  Cause

• Unavoidable Accident (tornado)

• Open and Obvious

• Immunity (police officer)

• Limitations

• Damage Caps

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Affirmative Defense

• Intervening causes

• Different harm
• Extraordinary damage
• Independent
• Caused by 3rd party
• Degree

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Unavoidable Accident

1. Non human condition
2. Act of God

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Open Obvious

• No duty to warn if open and obvious

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Immunity

• Governmental

1. Good faith
2. Acting in scope
3. Discretionary

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Damages

• Physical harm required

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Punitive Damages
Punitive damages have been significantly limited
by tort reform. But in action arising out of a
criminal act of an employee, the employer may be
liable for punitive damages if

• The employer authorized the manner of the act

• The agent was unfit and the employer acted with
  malice in retaining her/him

• The employee worked in a managerial capacity and
  was acting in her/his scope of employment

• The employer ratified the act

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Thank You
Kirk Willis member
kwillis_at_helmsgeene.com