§10.1 Premises Liability Generally

• Library: Torts (OSBar) (2012 Ed.)

§10.1 PREMISES LIABILITY GENERALLY

The person in possession and control of land is obligated to cause no unreasonable harm to others in the vicinity. W. Page Keeton et al., Prosser and Keeton on the Law of Torts §57, at 386 (5th ed 1984 & Supp 1988). The Oregon Supreme Court has dealt extensively with common-law negligence actions and, by and large, it has done away with the concept of duty as a necessary element of such a claim. In Fazzolari By and Through Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 17, 734 P2d 1326 (1987), and its progeny (known as the Fazzolari trilogy, see §8.2-3), the court determined that a defendant's liability for the plaintiff's injuries depends on whether the defendant's conduct "unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff." In other words, to a certain extent the court in Fazzolari supplanted the concept of duty with foreseeability. However, the court excepted from this analysis cases in which the parties invoke "a status, a relationship, or a particular standard of conduct that creates, defines, or limits the defendant's duty." Fazzolari, 303 Or at 17.

Therefore, notwithstanding the Fazzolari trilogy, a plaintiff who intends to assert a negligence claim sounding in premises liability must still plead and prove that the defendant owed the plaintiff a duty of care. See Glorioso v. Ness, 191 Or App 637, 643 n 7, 83 P3d 914 (2004) (because of special relationship between landowners and invitees, Fazzolari did not supplant existing case law regarding element of duty in premises liability cases).

In Oregon, the duty owed by an occupier of land to a visitor is dictated by the visitor's status. Stewart ex rel. Hill v. Kralman, 240 Or App 510, 517, 248 P3d 6 (2011). Three categories of visitor status exist in Oregon: invitee, licensee, and trespasser. Walsh v. C & K Market, Inc., 171 Or App 536, 539, 16 P3d 1179 (2000). Although there is some overlap, in general the duty of care owed by an occupier of land to an invitee is greater than that owed to a licensee, and the duty owed to a licensee is greater than that owed to a trespasser. Compare UCJI No. 46.09 (Possessor's Duty to Invitee), UCJI No. 46.06 (Duty to Licensee), and UCJI No. 46.04 (Duty to Trespasser).

A plaintiff need not allege his or her status at the time of injury because any such allegation would be conclusory; rather, in a premises liability claim a plaintiff must allege facts from which his or her status can be inferred. Rich v. Tite-Knot Pine Mill, 245 Or 185, 197, 421 P2d 370 (1966).

The critical status of the visitor is not the status held by him or her "upon entry onto the premises"; rather, it is the status "held at the moment of injury." Taylor v. Baker, 279 Or 139, 148, 566 P2d 884 (1977); Cassidy v. Bonham, 196 Or App 481, 486, 102 P3d 748 (2004). Thus, the plaintiff's status at the time of injury defines the nature of the duty owed by the possessor of the premises to the plaintiff. See, e.g., Baker v. Lane County, 37 Or App 87, 91, 586 P2d 114 (1978) (at time of injury, plaintiff was invitee and, accordingly, defendant owed duty of reasonable care).

A visitor's status can change depending on the time of the injury. Hansen v. Cohen, 203 Or 157, 163, 276 P2d 391, 278 P2d 898 (1954) ("plaintiff was unlawfully using the defendants' premises for purposes or in ways other than those for which they were intended or to which his invitation extended"); Rich, 245 Or at 192-193 (even though plaintiff originally entered sawmill as invitee, jury could have found that he was trespasser at time he was attempting to straighten disarranged lumber without being asked to do so).

A visitor's status can also change depending on the location where the injury occurred. See Dutton v. Donald M. Drake Co., 237 Or 419, 391 P2d 761 (1964) (plaintiff may have been invitee initially when he entered shopping center but his status changed when he attempted to enter slippery and dangerous construction area). In other words, a person who enters another's premises may be an invitee or licensee for only a certain period of time, for only one purpose, or for only a portion of the premises.

PRACTICE TIP: The lawyer should determine early in the case investigation the plaintiff's status at the time and location of injury. That status determines the duty owed.

NOTE: A number of jurisdictions, including California, Colorado, the District of Columbia, Hawaii, Rhode Island, New York, New Hampshire, Louisiana, and Alaska, have rejected the rule that the nature of duty should depend almost entirely on the status of the visitor. Other jurisdictions have modified their premises liability laws by, for example, eliminating the invitee-licensee distinction as it relates to a property owner's duty of care, but maintaining the limited duty owed to a trespasser. See Ragnone v. Portland School Dist. No. 1J, 291 Or 617, 637-638, 633 P2d 1287 (1981) (Lent, J., concurring) (citing relevant cases and commentaries). However, like Oregon, Washington and Idaho also adhere to the traditional rule that the duty owed by a landowner to a visitor depends on the status of the visitor. See Afoa v. Port of Seattle, 247 P3d 482, 489-490 (Wash App), rev. granted, 257 P3d 664 (2011) ("[t]he legal duty owed by a landowner to a person entering the premises depends on whether the entrant falls under the common law category of a trespasser, licensee, or invitee"); Antim v. Fred Meyer Stores, Inc., 251 P3d 602, 605 (Idaho App 2011) ("[t]he duty of owners and possessors of land is determined by the status of the person injured on the land (i.e., whether the person is an invitee, licensee, or trespasser"). For a full discussion of the evolution of the common law of premises liability, see Justice Lent's concurring opinion in Ragnone, 291 Or at 624-640.

§10.1-1 Invitees

Oregon law applies two tests to determine whether a visitor on the premises has the status of an invitee: the economic benefit test and the invitation test. Taylor v. Baker, 279 Or 139, 146, 566 P2d 884 (1977). Such tests find their roots in the Restatement (Second) of Torts §332 (1965):

(1) An invitee is either a public invitee or a business invitee.

(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.

(3) 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.

A person whom the Restatement describes as a "public invitee" is an invitee under the invitation test, while a person whom the Restatement describes as a "business visitor" is an invitee under the economic benefit test. Walsh v. C & K Market, Inc., 171 Or App 536, 540, 16 P3d 1179 (2000). Further description of these two tests is provided in Parker v. Hult Lumber & Plywood Co., 260 Or 1, 8, 488 P2d 454 (1971):

There are two tests by which courts usually determine whether a person on the premises of another occupies the position of an invitee. The first is the economic benefit theory, which is the one usually applied in Oregon. [Citation omitted.] It defines an invitee as one who comes upon the premises at the occupier's invitation, express or implied, upon business which concerns the occupier. It proceeds upon the assumption that the economic advantage of plaintiff's presence to the occupier imposes upon him the duty to use due care for plaintiff's safety.

The other test is the invitation test. Under this test, the person coming upon the premises is an invitee if the occupier, expressly or impliedly, has led such person to believe that the premises were intended to be used by visitors for the purpose which plaintiff is pursuing and that such use was not only acquiesced in by the occupier but was in accordance with the intention or design with which the place was adapted and prepared. Such arrangement or other conduct encourages people to enter the land with a sense of assurance that it has been prepared for their safety.

Although it is possible for a visitor to be both a public invitee as well as a business invitee (Walsh, 171 Or App at 540), invitee status applies even if the visitor meets only one of these two tests (Parker, 260 Or at 8-9).

However, failure of both tests results in licensee status at best. In the Parker case, while on his employer's premises the plaintiff employee was injured while gathering waste wood for his own use as firewood. Because the plaintiff was on the premises for his own purpose without economic benefit to his employer, under the economic benefit test the plaintiff was not a business invitee. Parker, 260 Or at 9. Furthermore, because "the use which plaintiff was invited to make of the premises was not sufficiently in conformance with the way the premises were adapted and normally used," under the invitation test the plaintiff was not a public invitee. Parker, 260 Or at 11. Therefore, as a matter of law, the plaintiff was a licensee. Parker, 260 Or at 11.

In Cassidy v. Bonham, 196 Or App 481, 486, 102 P3d 748 (2004), the court distinguished between the invitation given to an invitee and the permission given to a licensee by citing the Restatement (Second) of Torts §332, comment b (1965) (emphasis in original):

Although invitation does not in itself establish the status of an invitee, it is essential to it. An invitation differs from mere permission in this: an invitation is conduct which justifies others in believing that the possessor desires them to enter the land; permission is conduct justifying others in believing that the possessor is willing that they shall enter if they desire to do so. Any words or conduct of the possessor which lead or encourage the visitor to believe that his entry is desired may be sufficient for the invitation."

See also UCJI No. 46.08 (Definition of Invitee).

Note: Although the Oregon appellate courts often

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