Premises Liability Law in Indiana
The status of a person upon entering another's property determines the "duty" the landowner owner owes the visitor. Indiana's most famous case that decided that law was called Burrell v. Meads, 569 N.E.2d 637 (Ind. 1991). The Indiana Supreme Court ruled on two major changes to premises liability law in Burrell. First, the Court expanded the "invitee" class to include social guests and not just customers to stores.
Secondly, the Court adopted a law from a book known as the Restatement (Second) of Torts § 343. This was important and comprehensive. A synopsis of the Burrell Court’s analyses provides the following for quick reference, from highest duty owned by a landowner down to the lowest duty:Status Landowner Duty
- Invitee → use reasonable care to discover and protect
- Licensee → warn of latent/hidden dangers, avoid willful/wanton acts
- Trespasser → avoid intentional, grossly deviant conduct, &/or entrapment
In short, if an injured party was invited on the land (or a social guest), the landowner owed the highest duty to "be reasonable" to avoid injuries and protect him from harm while at his house or business. (Like making sure a business salts or plows its parking lots and sidewalks after a snowstorm).
The next level is an invitee. This is a difficult concept for some people to understand. The best definition of a "licensee" that I have ever heard was to imagine seeing a bunch of kids having a car wash at a local business or standing around and asking for donations in front of WalMart.
Even though they are not a customer, the landowners and stores owe them the duty to warn them about dangers that the store owners know about (like watch out for a hole or loose-hanging gutter from the store).
The third category is trespassers. The law in Indiana is that a landowner only owes the duty to not intentionally hurt them.
Another way to explain these duties is like this:
- Trespasser: landowner must refrain from willfully or wantonly (intentionally) injuring him/her after discovering his/her presence.
- Licensee: landowner must refrain from willfully or wantonly injuring him/her or acting in a manner to increase his/her peril. The landowner must also warn a licensee of any latent danger on the premises of which the landowner has knowledge.
- Invitee: landowner owes the highest duty, which is to exercise reasonable care for his/her protection while he/she is on the premises.
The Restatement defined the standard of care owed to customers and social guests (not licensees or trespassers).
The Burrell Court noted that the best definition of the duty owed to an invitee comes from the Restatement (Second) of Torts § 343 (1965), which states that:
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he: (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees; (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it; (c) fails to exercise reasonable care to protect them against the danger.
This explanation is still seen by Shaw Law Offices in almost every slip and fall or trip and fall case we handle.
But, as explained above, sometimes it is very difficult to determine whether a person is an invitee (customer or social guest) or licensee (car wash kids or kids looking for donations) or a trespasser.
In the old days, courts used the "invitation" test to determine the status of the person upon the land -- whether they were invited or tacitly invited to be there. In the 1800's until around 1914, our courts used the "invitation test," which focused on the invitation itself. Id. This invitation was seen as an inducement to enter the land, whether express or implied, which led the entrant to believe that the land had been prepared for his safety. Then the law became the "economic benefit test." It said that the status was determined by whether the landowner made money off the person on the land.
The Burrell Court said that old law was not helpful any longer and moved away from the restrictive economic benefit test, and back to the "invitation test." Id. at 624. It specifically declared that "at least those persons described in the Restatement (Second) of Torts §332 qualify as invitees." Id. The Restatement defines an "invitee" as "either a public invitee or business visitor." Id. A "business visitor" is "a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land."
The Burrell Court expanded this definition to include a third category, social guests. Id. at 643.
To this day, many landowners and their attorneys misunderstand the legal meaning of the word "invitation." An "engraved invitation" is not necessary. Instead, the definition is expansive. For example, customers to a store do not receive a formal invitation to eat or shop at McDonald's or Target.
Specifically, an invitation may be an "express or implied" inducement to enter the land which led the entrant to believe that the land had been prepared for his safety.
Determining a person’s status is not always simple. In Mohr v. Virginia B. Smith Revocable Trust, 2 N.E.3d 50 (Ind.App. 2014), the Court properly found a man to be a "licensee" where he was hurt while sitting in Defendant's hammock on Defendant's private property without Defendant's knowledge. The injured man was not a "public invitee," "business visitor," or "social guest."
A plaintiff who was hurt while exploring uninvited inside a large, vacant, dimly lit building on his own choice was found to be a "licensee". Rhoades v. Heritage Investments, LLC, 839 N.E.2d 788, 790 (Ind. App. 2005). In Taylor v. Duke, 713 N.E.2d 877 (Ind. App. 1999), a vagrant was injured when a trailer he had chosen to sleep under was driven away by a driver who did not know he was under it. Id. at 879. In both cases, the Appeals Court of Indiana ruled each person was a "licensee" because the land was not open to the public and the injured person was not there to spend money at the business and he was not a guest socially.
When confronted with a difficult question like the status of a person upon a land who becomes injured, it is best to call Shaw Law Offices and explain the situation to an experienced and compassionate attorney with 30+ years of premises liability experience.
In Moore v. Greensburg High School, 773 N.E.2d 367 (Ind. App. 2002), the Court of Appeals held that a parent at the high school as a volunteer decorating the school for the prom, was a licensee rather than an invitee.
A person's status as an entrant on land is a matter generally left for determination by the court. Christmas v. Kindred Nursing Centers Ltd. Partnership, 952 N.E.2d 872, 878 (Ind. App. 2011). A person's status may sometimes turn on factual issues, and should thus be a matter for the jury.
Call Shaw Law Offices for all of your premises liability legal questions including status upon land and the standard of care owed to them by a landowner, business or premises occupier.