Premise Liability

Publication year2021

76 Nebraska L. Rev. 184. Premise Liability


Owners and Occupiers of Land Now Owe Those Lawfully on Their Premises a Duty of Reasonable Care Under Heins v. Webster County, 250 Neb. 750, 552 N.W.2d 51 (1996)


I. Introduction 184

II. Background 185

A. Policy Reasons 188

B. The New Nebraska Position 189

III. Analysis 190

A. Rigid Application of Common Law Distinctions 190

B. Defining Licensees/Invitees 192

C. Social Guests 195

D. What About Trespassers? 195

E. Effect Heins Will Have on Nebraska Law 201

IV. Conclusion 202


Throughout its relatively short history, American law has placed a special value on the rights of real property owners. Often, the law protected these rights in a way that made land use seem more like a civil liberty than a social resource.(fn1) One way the common law protected property rights was by limiting landowners and occupiers' tort liability when entrants were harmed on the land. Limiting tort liability allowed landowners to use their land in any manner they chose, thus protecting valuable property rights. Yet, as American ideas about the value of property have begun to change,(fn2) so too have the


laws regarding tort liability of owners and occupiers. Nebraska recognized this tort reform in Heins v. Webster County.(fn3)

In Heins, the plaintiff, Mr. Heins, injured his back when he slipped at the front entrance to Webster County Hospital in Red Cloud, Ne-braska. Heins was leaving the hospital after visiting his daughter, who was employed as a nurse at the hospital. Because his was merely a social visit, under existing Nebraska law Mr. Heins was a licensee and was denied recovery. The Nebraska Supreme Court held, however, that the distinction between licensees and invitees should be abolished and replaced by a reasonable standard of care for all lawful entrants.

The decision in Heins will dramatically affect premises liability law in Nebraska. Under Heins, the common law distinction between licensees and invitees is no longer solely determinative of the duty an owner or occupier owes to an entrant upon his land. Instead, licensees and invitees are now entitled to a reasonable standard of care under the circumstances. Trespassers, however, remain subject to the common law classification system.

This Note will examine how the Heins decision beneficially changed Nebraska law. Abolishing the common law status distinctions and applying a reasonable standard of care under the circumstances frees the court from the harshness of the common law and the problems of rigid application. A reasonable standard of care also more fully exemplifies modern social values. This Note will further show that the Heins decision was merely a step in the right direction for the court. To fully ameliorate the harmful effects of the common law categories, the court also should eliminate the status category of trespasser and should instead apply a single duty of reasonable care under the circumstances in all premises liability situations.


Although most negligence law is based on the belief that one owes a duty of reasonable care to others,(fn4) owners and occupiers of land traditionally have not been held to this standard of care. Instead, at common law, owners and occupiers of land owed a duty of care based on the status of the entrant.(fn5) Entrants historically were classified as invitees, licensees, or trespassers. An invitee is generally defined as a person who is expressly or implicitly invited to enter or remain on the land for a purpose connected with the business dealings of the posses


sor of the land,(fn6) and is owed a duty of reasonable care.(fn7) A licensee is generally defined as a person who is privileged to enter or remain on land only by virtue of the possessor's express or implied consent.(fn8) An owner or occupier owes to a licensee a duty to warn of any unreasonable hidden conditions.(fn9) A trespasser generally is defined as one who enters or remains upon land in the possession of another without a privilege created by the possessor's consent or otherwise.(fn10) A trespasser is owed only the duty to refrain from intentional willful or wanton conduct.(fn11)

These status distinctions originated in England(fn12) and were incorporated into American common law. The status distinctions likely resulted from the strong emphasis early English society placed on land ownership.(fn13) The distinctions perhaps also reflect intangible social values inherited from feudal times.(fn14) The categories reflect the idea that a landowner should have the freedom to use his land in any way he chooses.(fn15) Modern society, however, is no longer based on landed property or feudal values. In 1957, England recognized the modernization of society and values by abolishing the distinction between licensees and invitees.(fn16)

American jurisdictions also have questioned the common law categories. In 1959, the United States Supreme Court soundly criticized the distinctions in Kermarec v. Compagnie Generale Transatlantique and refused to incorporate the distinctions into admiralty law.(fn17) The landmark American decision appeared in 1968, when the California


Supreme Court abolished the distinction between invitees, licensees, and trespassers in Rowland v. Christian.(fn18) Rowland went further than the English Parliament; Rowland eliminated all three categories, refusing to maintain a separate classification for trespassers. Since 1968, eleven jurisdictions have followed Rowland and completely abolished the common law classifications.(fn19) Another ten jurisdictions have followed the English lead and taken an intermediate position, abolishing the classifications of invitee and licensee while retaining a separate classification for trespassers.(fn20) Several other jurisdictions have altered the common law categories significantly via case law(fn21) or legislative act.(fn22) The majority of American states have, however, either expressly retained the common law distinctions or declined to abolish them.(fn23)


A. Policy Reasons

Jurisdictions retaining common law categories advance various reasons for doing so. One rationale is that the categories are entrenched in our common law and should not be changed on judicial whim.(fn24) It is also suggested that the categories promote judicial certainty by establishing predictable allocations of liability.(fn25) Some fear that abrogation of the categories and adoption of one standard of care will eliminate the security that the categories provide for landowners and occupiers. Along this line, it has been argued that "the single standard will hardly be a simplification, but an enigma masked in an elusive generalization, so broad, that there are no articulated exceptions."(fn26) Jurisdictions that retain the categories also point to the judiciary's ability to carve out exceptions to the rigid common law rules.(fn27) Additionally, some courts fear giving too much power to juries,(fn28) while others consider the matter one that is best resolved through legislative efforts.(fn29)

A number of reasons for abandoning the status categories also exist. One reason often advanced is that the numerous judicial exceptions to the common law rules have resulted in confusion and complexity.(fn30) This complexity erodes any judicial certainty the categories may promote because it is difficult to determine when an exception might be created or applied. Some argue that the common law rules developed during a time of feudal landed estates, and such laws are no longer beneficial in our modern society.(fn31) A further argument is that reasonable people do not vary their conduct based on the status of the entrant, and thus a reasonable standard of care under the circumstances should apply.(fn32) It should be noted that when the common law rules are abandoned in one form or another, the status of the en


trant remains a relevant factor in determining the liability of the landowner or occupier.(fn33) Status, however, is no longer solely determinative of the duty of care owed.

B. The New Nebraska Position

In Heins v. Webster County, Nebraska joined those jurisdictions adopting the "intermediate position"-abolishing the common law distinction between licensees and invitees while retaining a separate category for trespassers.(fn34) Heins suffered an injury to his back when he slipped on a patch of ice and fell upon the front entrance steps to Web-ster County Hospital. Heins was at the hospital visiting his daughter, who was employed there as the Director of Nursing. Because Heins was paying his daughter a social visit, under existing Nebraska law he was only a licensee entitled to only a limited duty of care, and the trial court found for the hospital.(fn35) Heins appealed to the Nebraska Supreme Court, arguing that the common law status distinctions should be abolished.

In the majority opinion written by Justice Connolly and joined by four other justices, the supreme court reviewed the state of premises liability law in other jurisdictions and considered the policy justifications for and against the status distinctions.(fn36) The court essentially traced the development of the common law status distinctions and the changes made to the distinctions in England and various American jurisdictions. The court then abandoned the distinction between licensees and invitees, while retaining a separate classification for trespassers.(fn37) The court listed seven factors to be considered to determine whether the owner or occupier of land had exercised reasonable care:

(1) the foreseeability or possibility of harm; (2) the purpose for which the entrant entered the premises; (3) the time, manner, and circumstances under which the entrant entered the premises; (4) the use to which

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