This case involved claims for personal injuries against a Property Owners Association (Association) by an individual who was injured (Plaintiff) after falling off of a retaining wall located within Associations common areas. The incident took place one night after Plaintiff, who resided in a neighboring complex unrelated to Association, was returning to his complex after visiting friends who owned units that were part of Association. As a result of injuries sustained in the fall, Plaintiff filed suit against Association alleging that it did not exercise ordinary care by failing to install a guard or rail on the top of the retaining wall.

The trial court granted summary judgment to Association after finding that, as a matter of law, Plaintiff was a licensee while on Associations property and, as such, the only legal duty Association owed to Plaintiff was to warn him of hidden dangers, and the retaining wall was an open and obvious danger (not hidden). Plaintiff then appealed the trial courts judgment contending that his status while he was on Association property was that of an invitee, and not a licensee, and as such, Association owed him a duty of ordinary care to fix dangerous conditions, such as an unguarded retaining wall.

On review, the appellate court discussed the basis for imposing premises liability on landowners in Arkansas and noted that there are three basic categories of persons who may be present on anothers property when they sustain an injury: trespasser, licensee, and invitee. The duty that the landowner owes to a person alleging an injury that was suffered on the landowners property depends upon their status as either a trespasser, a licensee or an invitee. Having determined that Plaintiff was not a trespasser on Associations property at the time of his personal injury, the issue was whether he was an invitee or a licensee. In making that determination, the appellate court stated that it is important to look to: (i) the purpose of the visit; and (ii) the property owners invitation.

In considering Plaintiffs status as either an invitee or licensee, the trial court stated that a licensee is one who goes on the premises of another with the consent of the owner for ones own purposes and not for the mutual benefit of oneself and the owner. In contrast, an invitee is one who has been induced to enter onto the property for the business benefit of the possessor of the property. In this particular case, because Plaintiff was visiting friends in their homes located on Associations grounds, he was considered a social guest and, therefore, a licensee.

Having determined that Plaintiff was a licensee at the time of his injury, the court then considered the nature of the duty that Association owed to him when he was on the property. The court stated that, as a general rule, a landowner owes a licensee the duty to refrain from injuring the licensee through willful or wanton conduct and To constitute willful or wanton conduct, there must be deliberate intention to harm or an utter indifference to or conscious disregard of, the safety of others. There is an exception to the general rule when the landowner has knowledge that a licensee is in peril. When that occurs, the landowner has a duty of ordinary care to avoid personal injury to the licensee. This duty requires warning a licensee of hidden dangers that are not obvious dangers or risks that the licensee should have been aware of. Thus, when a landowner knows or has reason to know of a condition on the premises that is not open and obvious and that creates an unreasonable risk of harm to licensees, then the landowner 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.

After considering the facts of this case, the appellate court concluded that Association had not demonstrated, as a matter of law, that the danger presented to Plaintiff was an open and obvious condition. Thus, the appellate court concluded that there were issues of material facts pertaining to whether or not Association owed a duty to Plaintiff to use ordinary care to make the retaining wall safe or provide adequate warning to Plaintiff. Accordingly, the appellate court reversed the decision of the trial court and remanded the case back to the trial court for further proceedings.

Arkansas Appellate Court decision (February 6, 2019)

See case decision: Noel_v._Cox_2019_Ark._App._70_(Ark._App._2019)1