It’s time for the next installment of Holcomb Dunbar law series “Insurance Law from A to Z.” This was put together by our litigation group who practice in the insurance law arena. Of course, if you have questions about these or any other topics please do not hesitate to contact us.
This week’s installment – Premises Liability
Generally, the duty which a landowner owes to another is determined by the common law statuses: trespasser, invitee, and licensee. Little v Bell, 719 So.2d 757 (Miss. 1998). A three-step process is applied to determine premises liability: determining the status of the injured person; the duty that is owed based on the status; and whether the duty was breached by the landowner. Leffler v. Sharp, 891 So. 2d 152 (Miss. 2004).
A trespasser is someone who enters the property of another without permission. Hughes v. Star
Homes, Inc., 379 So. 2d 301, 303 (Miss 1980). A landowner owes the trespasser the duty not to willfully or wantonly injure him. Id. at 304.
The Attractive Nuisance Doctrine applies to situations involving child trespassers. The plaintiff must prove four elements when a child enters another’s property and is injured by a dangerous condition: 1) that the owner knew or should have known of the dangerous artificial condition, 2) that the owner knew or should have known that children frequent the area where the dangerous condition exists, 3) that it is unlikely that the child trespasser could appreciate the risk presented, and 4) that the cost to correct the dangerous condition is minimal compared to the magnitude of the risk. It should be noted that the plaintiff is NOT required to show that the child was actually attracted by the dangerous condition. Keith v. Peterson, 922 So. 2d 4 (Miss. Ct. App. 2005), cert. denied, 926 So. 2d 922 (Miss. 2006).
A licensee is someone who enters the property of another for his own benefit with the express or implied permission of the owner. Little, 719 So. 2d at 760. A landowner owes a licensee the duty to refrain from willfully or wantonly injuring him (same as Trespasser). Hughes, 379 So. 2d at 304. “Social guests” are considered licensees.
An invitee is someone who enters the property of another with the express or implied permission of the owner for the mutual benefit of the invitee and the owner. Hoffman v. Planters Gin Co. Inc., 358 So. 2d 1008, 1011 (Miss. 1978). The duties that the landowner owes to an invitee are to keep the premises reasonably safe and to warn of hidden dangers. Mayfield v. The Hairbender, 903 So. 2d 733 (Miss. 2005).
The premises owner is liable for injuries proximately caused by his affirmative or active negligence which subjects a person to unusual danger, or increases hazard to him, when his presence is known to the owner. The standard is of ordinary and reasonable care in these situations. Hoffman v. Planters Gin Co., Inc., 358 So. 2d 1008, 1013 (Miss. 1978).
Slip and Fall
In order for a plaintiff to recover in a slip and fall case, he must show (1) that some negligent act of the defendant caused his injury; or (2) that the defendant had actual knowledge of a dangerous condition and failed to warn the plaintiff; or (3) that the dangerous condition existed for a sufficient amount of time to impute constructive knowledge to the defendant, in that the defendant should have known the dangerous condition. Anderson v. B. H. Acquisitions, Inc., 771 So. 2d 914, 918 (Miss. 2000) (citing Downs v. Choo, 656 So. 2d 84, 86 (Miss. 1995)).
The information contained in this post is for general guidance on matters of interest only. The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, there may be omissions or inaccuracies in information contained in this report. Accordingly, the information in this report is provided with the understanding that the authors are not herein engaged in rendering legal, tax, or other professional advice and services. As such, it should not be used as a substitute for consultation with legal or other competent advisers. Before making any decision or taking any action, you should consult with your counsel or the attorneys at Holcomb Dunbar.