Owner Beware: Property Owners’ Assumption of a Heightened Duty of Care and Resulting Liability

By Trey Cooper

Property owners should be careful to avoid assuming heightened duties of care and resulting tort liability. Under Arkansas law, a land owner's duty and possible liability are generally dependent on the statue of the person entering onto the land owner's property. A trespasser is someone who enters on the property of another without the consent of the owner and without an invitation. A licensee has the consent of the owner to enter the property, but does so for his own benefit, pleasure, or convenience (social guests, neighbors, and friends typically fall into this category). An invitee enters the property with permission of the owner and for a purpose connected with an activity of the owner or for a mutual benefit of both parties (customer of a business).

Property owners owe no duty to a trespasser as long as their presence is unknown. When the trespasser's presence is known, the owner only has the duty not to cause injury by willful and wanton conduct. As to a licensee, the owner is under no duty to inspect the property for safety, but the owner is under the duty not to injure the licensee by willful and wanton conduct. Finally, as to invitees, the owner owes a duty to use reasonable care to maintain the property in a reasonably safe condition.

According to Arkansas case law, an owner of property may voluntarily assume a duty greater than that imposed by the common law. For example, a property owners association would normally owe social guests to the property the duty owed to a licensee (not to injure the visitor by willful and wanton conduct). Where the property owners association agrees to maintain and repair the common areas of the property, it has voluntarily assumed a duty to exercise ordinary care to maintain the common areas in a reasonably safe condition. Lloyd v. Pier W. Prop. Owners Ass'n, 2015 Ark. App. 487, 470 S.W.3d 293.   Had the property owners association not assumed the duty to exercise ordinary care, it would only owe a duty not to injure social guests to the property by willful and wanton conduct.

Property owners should be cognizant of what duty, if any, is owned to visitors to their property. If a property owner assumes responsibility for maintaining and repairing the property, the property owner should be diligent in exercising ordinary care (the care a reasonable person would exercise in the same situation) to ensure there are no dangerous conditions of the property or that visitors are warned of any dangerous condition in order to avoid it.

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