Negligence - Dangerous Premises - Licensee and Invitee Distinguished

Similar documents
Torts. Louisiana Law Review. Wex S. Malone. Volume 25 Number 1 Symposium Issue: Louisiana Legislation of 1964 December Repository Citation

Torts - Duty of Occupier to Social Guests

Torts - Liability of Owner for the Negligent Driving of Automobile Thief

Torts - Policeman as Licensee

Security Devices - Personal Liability of Third Party Purchasers Under Revised Statutes 9:5362

Bottler's Liability to Ultimate Consumers for Injury Caused by Defective Products

Sales - Automobiles - Bona Fide Purchaser Doctrine

Torts - Automobile Guest Passengers - Contributory Negligence as Bar to Recovery From Third Parties

Criminal Law - Assault with an Unloaded Firearm

Verbal Abuse and the Aggressor Doctrine

Criminal Procedure - Pleas of Guilty Not Responsive to Bill of Information - Right of State to Correct Proceedings

Conflict of Laws - Jurisdiction Over Foreign Corporations - What Constitutes Doing Business

Labor Law - Conflict Between State Anti-Trust Law and Collective Bargaining Agreement

Res Ipsa Loquitur - Burden of Proof - Applicability in Electricity Cases

A COMMENT ON RESTATEMENT THIRD OF TORTS PROPOSED TREATMENT OF THE LIABILITY OF POSSESSORS OF LAND. George C. Christie

STATE OF MICHIGAN COURT OF APPEALS

David Cox v. Wal-Mart Stores East

Animals - Stock at Large - Duty of Owner - Parish Ordinances - Article 2321 of the Civil Code

Private Law: Torts. Louisiana Law Review. William E. Crawford Louisiana State University Law Center

Criminal Law - Bribery of a Public Officer

Torts - Right of Way at Intersections in Louisiana - Preemption Doctrine

Criminal Law - Felony-Murder - Killing of Co- Felon

Illinois Official Reports

Torts - Liability of Automobile Owner for Driver's Negligence

JUDGMENT AFFIRMED. Division VII Opinion by JUDGE J. JONES Russel and Terry, JJ., concur. Announced December 24, 2009

Criminal Law - Misappropriation of Funds of a Commercial Partnership by One of the Partners

Criminal Law - Article 27 of the Criminal Code - Attempted Perjury

Civil Code and Related Subjects: Mineral Rights

MANUFACTURER LIABLE FOR BREACH OF EXPRESS WARRANTY: PRIVITY NOT REQUIRED

Mineral Rights - Interpretation of Lease - Effect of Signing a Division Order

Federal Rules of Civil Procedure - Diversity of Citizenship - Third Party Practice

Campbell v. Royal Bank of Canada [1964] S.C.R. 85

GRADER S GUIDE *** QUESTION NO. 1 *** SUBJECT: TORTS. Pat will assert claims for assault and battery and trespass to property.

Libel and Slander - Limitation of Actions - Single Publication Rule

Civil Law Property - Alluvion - Distinguishing Lakes Form Rivers and Streams

Evidence - Applicability of Dead Man's Statute to Tort Action

OCCUPIERS LIABILITY ACT

Private Law: Torts. Louisiana Law Review. William E. Crawford Louisiana State University Law Center

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

Conflict of Laws - Jurisdiction Over Nonresidents - Constructive Service in Tort Action Arising Outside the State

Jurisdiction in Personam Over Nonresident Corporations

States - Amenability of State Agency to Suit

Reconventional Demand

STATE OF MICHIGAN COURT OF APPEALS

Torts - Liability for Damage Caused by Trespassing Cattle

Torts - Occupier's Liability To Trespassing Children

The Effect of the Adoption of the Proposed Uniform Commercial Code on the Negotiable Instruments Law of Louisiana - The Doctrine of Price v.

No SUPREME COURT OF NEW MEXICO 1974-NMSC-086, 87 N.M. 25, 528 P.2d 884 November 08, Motion for Rehearing Denied December 11, 1974 COUNSEL

The section Causation: Actual Cause and Proximate Cause from Business Law and the Legal Environment was adapted by The Saylor Foundation under a

IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

Criminal Procedure - Court Consent to Plea Bargains

STATE OF MICHIGAN COURT OF APPEALS

SUMMER 2002 July 15, 2002 MIDTERM EXAM SAMPLE ANSWER

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

Corporations - Right of a Stockholder to Inspect the Corporate Books

No. 116,578 IN THE COURT OF APPEALS OF THE STATE OF KANSAS. CHRISTINA BONNETTE, Appellant, TRIPLE D AUTO PARTS INC., Appellee. SYLLABUS BY THE COURT

Torts - Personal Injury or Wrongful Death Suits by Child or Administrator Against Parent

Don t Forget the Immunity Offered by the Recreational Use of Land and Water Areas Act

Eileen Sheil v. Regal Entertainment Group

Workmen's Compensation - Liability Under the Borrowed Servant Doctrine

Torts - Landlord's Liability - Liability of Landlord to Trespassing Child for Failure to Repair. Gould v. DeBeve, 330 F.2d 826 (D. C. Cir.

Torts - Liability of Owner of Stolen Automobile

Res Judicata Personal Injury and Vehicle Property Damage Arising from a Single Accident

7.21 JONES ACT COMPARATIVE NEGLIGENCE (Approved pre-1985) If in accordance with the principles of law heretofore given you, you find that

Torts - Duty of a Commom Carrier to Passenger with Infirmity

STATE OF MICHIGAN COURT OF APPEALS

Torts - Contributory Negligence as a Matter of Law - Auto Collisions in Smoke, Fog, and Dust

Land Occupiers' Liability - The Duty of Reasonable Care to All

Public Law: Discharge in Bankruptcy

PUBLISH UNITED STATES COURT OF APPEALS TENTH CIRCUIT. Plaintiffs-Appellees, v. No UNITED STATES OF AMERICA,

WORKER'S COMPENSATION LAW AND PRACTICE Second Edition. By Wex S. Malone and H. Alston Johnson, III. West Publishing Co Pp. xvi and 654.

FOOD & BEVERAGE LITIGATION UPDATE. Elizabeth A. DeConti, GrayRobinson

Torts - Liability for Harmful Reliance on a Gratuitous Promise

Mineral Rights - Recital of Oustanding Mineral Rights in a Deed of Sale as a Reservation - Error of Law

Local Government - Municipal Immunity from Tort Liability - The Nuisance Exception

Volume 1959 Article 4

An Unloaded and Unworkable Pistol as a Dangerous Weapon When Used in a Robbery

Practice and Procedure - Intervention by Insured in Actions Brought Under the Direct Action Statute

STATE OF MICHIGAN COURT OF APPEALS

Mineral Rights - After-Acquired Title Doctrine - Reversionary Interest

Fall 1997 December 20, 1997 SAMPLE ANSWER TO MID-TERM EXAM QUESTION 1

Occupiers' Liability Act (Northern Ireland) 1957

Mineral Rights - Unitization - Prescription

Prescription of Movables - Meaning of "Stolen" in Articles 3506 and 3507, Louisiana Civil Code of 1870

2017 IL App (1st)

Status of the Social Guest: A New Look

STATE OF MICHIGAN COURT OF APPEALS

Constitutional Law - Applicability of the Fifth Amendment to the Federal Constitution to State Proceedings

The Assignment of Error

Measures of Damages - Vendor's Breach of Bond for Deed - Fruits and Revenue of the Land

Overdraft Liability of Joint Account Cosignatories

IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON November 18, 2015 Session

IN THE SUPREME COURT STATE OF FLORIDA

S04Q2099. GENERAL ELECTRIC COMPANY v. LOWE S HOME CENTERS, INC. The first question certified by the Eleventh Circuit in this case is whether

v No Washtenaw Circuit Court

Torts - Covenant Not to Sue as Bar to Action Against Other Joint Tort-feasors

SQUATTING UPDATE. Mary Martil Batchelors Solicitors

Effective of Responsive Verdict Statute - Indictments - Former Jeopardy

Restatement (Second) of Torts 496A (1965) Assumption of Risk

Plaintiff 's Failure to Use Available Seatbelt May Be Considered as Evidence of Contributory Negligence When Nonuse Allegedly Causes the Accident

Transcription:

Louisiana Law Review Volume 6 Number 2 Symposium Issue: The Work of the Louisiana Supreme Court for the 1943-1944 Term May 1945 Negligence - Dangerous Premises - Licensee and Invitee Distinguished R. O. Repository Citation R. O., Negligence - Dangerous Premises - Licensee and Invitee Distinguished, 6 La. L. Rev. (1945) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol6/iss2/16 This Note is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kayla.reed@law.lsu.edu.

1945] NOTES In jurisdictions other than Louisiana, courts have reached the same conclusion with reference to statutory change from hanging to either electrocution 26 or lethal gas. 2 7 In the Pierre case 28 and the subsequent case of State v. Burks 2 9 the judge sentenced the defendant to death by hanging and the trial court amended the sentence to make it comply with the provisions of Act 14 of 1940. In Henry v. Reid 0 the sentence was to die "in the manner provided by law" so that the executive head of the government could order the execution according to the statute then in force. This form of the sentence was also held valid in a later case. 3 1 We come to the conclusion that the method of carrying out the death penalty is as unessential an element as are the time and the place, and that it may be changed by the legislature even after the accused has been found guilty or has been sentenced, and its change at such a time does not deprive the defendant of any of his substantial rights. Actually it works to his advantage because thus the state is free to adopt the most modern and humane method of inflicting capital punishment. A.C. NEGLIGENCE - DANGEROUS PREMISES - LICENSEE AND INVITEE DISTINGUISHED--Plaintiff, a sixteen year old boy, entered the shop office of defendant railroad company in search of the superintendent. His purpose was to solicit defendant's advertising for a local newspaper. While waiting outside the shop, he was injured when one of several metal car wheels, which were negligently stacked, fell upon him. Held, plaintiff was an invitee and as such was owed the duty of reasonable care with respect to the condition of the premises. The court, having found that the plaintiff was entitled to protection against negligence, allowed recovery under 26. Woo Dak San v. State, 36 N.M. 53, 7 P. (2d) 940 (1931); Shipp v. State, 130 Tenn. 491, 127 S.W. 317 (1914). 27. Hernandez v. State, 43 Ariz. 424, 32 P. (2d) 18 (1934); Shaugnessy v. State, 43 Ariz. 445, 32 P.(2d) 337 (1937); State v.brown, 342 Mo. 53, 112 S.W. (2d) 568 (1938). 28. 200 La. 808, 9 So. (2d) 42 (1942), commented on in (1943) 5 LoUISNA LAW REvIEw 259. 29. 202 La. 167, 11 So. (2d) 518 (1942), commented on in (1943) 5 LOUISANA LAW REVIEW 578. 30. 201 La. 857, 10 So.(2d) 681 (1942), commented on in (1943) 5 LOt'SIANA LAW REVImW 578. 31. Iles v. Flournoy, 202 La. 29, 11 So.(2d) 16 (1942).

LOUISIANA LAW REVIEW [Vol. VI the doctrine of res ipsa loquitur. 1 Mercer v. Tremont & Gulf Railway Company, 19 So. (2d) 270 (La. App. 1944). It is generally held that one whose status is that of a licensee accepts the premises as he finds them and must be alert for his own safety. The only duty owed a licensee is that of warning him of dangerous conditions which are known to the occupier and which the licensee could not be expbcted to discover for himself. 2 On the other hand, the business guest, or invitee, as he is sometimes called, is entitled to assume that preparations for his safety have been made, and he is owed the duty of reasonable care with respect to the condition of the premises." The distinction between these two classes of persons has been recognized on several occasions in Louisiana.' There is considerable difference of opinion as to the basis of distinction between a licensee and invitee. 5 It is generally held that a business guest or invitee is one who comes upon the premises- for a purpose in which both he and the occupier have some sort of business interest.' If this mutual interest exists, it is not important whether the business guest came at the suggestion or request of the defendant or entered upon his own initiative. 7 In the latter instance it is commonly said that the existence of the "invitation" is implied. 8 Conversely, if a person is upon the 1. Pizzitola v. Letellier Transfer Co., 167 So. 158 (La. App. 1936); Rome v. London and Lancashire Indemnity Co. of America, 169 So. 132 (La. App. 1936); Jones v. Shell Petroleum Corp., 185 La. 1067, 171 So. 447 (1936); Loprestie v. Roy Motors, Inc., 191 La. 239, 185 So. 11 (1938). 2. Restatement of the Law of Torts, 340-343; Myers v. Gulf Public Service Corp., 15 La. App. 589, 132 So. 416 (1931). 3. Baucum v. Pine Woods Lumber Co., 130 La. 39, 57 So. 577 (1912). 4. Mills v. Heidingsfield, 192 So. 786 (La. App. 1939). 5. The Restatement of the Law of Torts, 330-332 bases the difference on "business interest." Prosser, Busin~ess Visitors and Invitees (1942) 20 Can. Bar Rev. 357, 393: "When premises are thrown open to the public, the occupier assumes responsibility for their safe condition toward any member of the public who may enter for the purpose for which they are open, regardless of whether he brings with him the hope of profit or 'benefit.' "When premises are not open to the public, the individual may still be entitled to protection if he enters under circumstances which give him reasonable assurance that care has been taken to make the place safe for his reception. Visits for the performance of contracts, and for other economic advantage to the occupier, usually are made upon such implied assurance. "When premises are not open to the public, the individual is not entitled to protection where he does not enter under circumstances giving him reasonable assurance that the place has been made safe for him; and this is true whether or not he confers benefit upon the occupier." 6. Ibid. 7. Mills v. Heidingsfleld, 192 So. 786 (La. App. 1939). 8. To come under an implied invitation, a visitor must come for a purpose connected with the business in which the occupant is engaged, or which he permits to be carried on, and there must be some mutuality of interest. Plaintiff who went to the railroad station to mail a letter was held to be invitee. Bell v. Houston and S. R. Co., 132 La. 88, 60 So. 1029 (1913).

19451 NOTES premises of another for his own personal purposes, he is a licensee even though an express invitation may have been extended him by the defendant? However, in border situations the existence of an invitation to enter business premises tends to indicate that the occupier considered the purpose of the visit as being in the interest of his business, while the absence of an invitation is persuasive of the fact that the plaintiff was a licensee.' 0 Cases in which the plaintiff enters the defendant's premises as a salesman or solicitor with only the hope of arousing the latter's interest in a business transaction have given the courts considerable trouble." There is a tendency to regard such a person as an invitee only when the prospective business would be clearly advantageous to the occupier, as where the existence of previous dealings between them indicates a likelihood of interest by the defendant. Where, under these circumstances, the entry is onto non-business premises, the courts are generally reluctant to regard the plaintiff's purpose as one in which the occupier would have a business interest. Thus, where a prospective tenant was injured while on residential property which he had entered for the purpose of determining whether or not the premises may be available for his tenancy at a future date, the court refused recovery on the ground that the plaintiff's status was that of licensee. 2 In the principal case, although the premises were not generally open to the public, it is to be expected that the defendant should, anticipate the presence not only of workmen but likewise of those having general business to transact with the railroad. Furthermore, newspaper advertising by railroads is a current practice, and it may be safely assumed that these companies consider it to be profitable. The decision is in line with the modem tendency to enlarge the group of persons classified as business guests. Narrow distinctions depending on the purpose of entry by the plaintiff are not only productive of confusion and uncertainty, but likewise encourage falsification of testimony. The court, having held that the plaintiff was entitled to the exercise of reasonable care, properly applied the doctrine of res ipsa loquitur. This doctrine has frequently been employed in 9. Vargas v. Blue Seal Bottling Works, Ltd., 126 So. 707 (La. App. 1930). 10. Myers v. Gulf Public Service Corp., 15 La. App. 589, 132 So. 416 (1931). 11. Southwest Cotton Co. v. Pope, 25 Ariz. 364, 218 Pac. 152 (1923); Hartman v. Miller, 17 A.(2d) 652 (Pa. Super. 1941). 12. Mills v. Heidingsfleld, 192 So. 786 (La. App. 1939).

304 LOUISIANA LAW REVIEW [Vol. VI Louisiana in the case of falling objects. 1 ' Its use, however, would clearly not be available if the plaintiff were a trespasser or a licensee." R.O. 13. In reference to falling objects, see Malone, Res Ipsa Loquitur and Proof by Inference-A Discussion of the Louisiana Cases (1941) 4 LOUISIANA LAW REVIEW 386; Lonatro v. Palace Theatre Co., 5 La. App. 386 (1926); Ramon v. Feitel House Wrecking Co., 17 La. App. 193, 134 So. 426 (1931); Pizzitola v. Leteiller Transfer Co., Inc., 167 So. 158 (La. App. 1936). 14. Boyett v. Chicago R. I. and P. R. R., 123 La. 579, 49 So. 200 (1909).