Torts-Duty to Licensee Under Premises Liability Law

Wickham v. Hopkins, __Ariz. Adv. Rep. __ 1 CA-CV 09-0523 (App. Div. I, April 19, 2011) (J. Gemmill)

PARENTS OF 14 YEAR OLD GIRL WHO THROWS DRINKING PARTY WHILE PARENTS ARE OUT OF TOWN OWE NO DUTY TO TEENAGER ATTENDING PARTY WHO IS ASSAULTED BY ANOTHER ATTENDEE

Defendants go out of town for several days. They leave their 14 year old daughter in the care of an adult coworker. On the night in question, the adult coworker leaves the defendants' daughter home alone and goes out to dinner. The daughter then invites friends who invite friends who invite friends to come over and drink, talk and listen to music. Approximately 70 teenagers show up. Plaintiff gets in a verbal altercation with another teenager. Plaintiff and his friends begin to leave and when they reach the street are confronted with the teen he had been arguing with and his friends. An altercation ensues ending with a rock being thrown which strikes plaintiff in the head and seriously injures him. He and his parents sue the defendants, the assailants and their parents. They claim the defendants were liable for negligence, negligent supervision, premises liability and vicariously liable for the coworker's negligence. The trial court granted defendants' motion for summary judgment on the question of duty. The Arizona Court of Appeals affirmed.

First the court noted that under Arizona law the duty of a landowner is determined by the status of the entrant as a licensee, invitee or trespasser. Here the plaintiff was clearly a licensee. He was invited to come onto the premises (permission destroys the chance of him being a trespasser) and was not charged anything to enter (hence not an invitee). The owner of premises (and her agent) has a lesser duty to licensees than invitees—she only needs to avoid “knowingly allowing him to encounter a hidden peril or willfully and wantonly causing him harm.” There was no evidence of hidden peril or willful and wanton conduct by the defendants.

Next the court of appeals noted that even the duty to a licensee ceases when the licensee leaves the premises. The duty to exercise reasonable care in providing safe ingress and egress applies only to business invitees. Here the injury occurred off the premises hence the defendant's owed no duty to the plaintiff. If, for example, they had undertaken the responsibility of providing safe ingress and egress they would have been obligated to do so with reasonable care. There, however, was no evidence that they had undertaken such a duty.

The court then dismissed the plaintiffs' argument that leaving their daughter home alone and unsupervised made it foreseeable that a drinking party might ensue and someone might be injured. The court pointed out that this argument is easily disposed of in that the Arizona Supreme Court has recently held in Gipson v. Kasey, 214 Ariz. 141, 150 P.3d (2007) that foreseeability is never relevant in determining duty. Duty is always a threshold question to be decided by the court and exists only when the common law, statute or public policy creates a special relationship between the parties creating the duty. Here there is no public policy or statute creating a duty. The only law addressing duty under these facts is the common law of premises liability.

[Editor's Note: The court of appeals specifically noted that as an intermediate appellate court it has no authority to abolish the premises liability rules of trespass, invitee and licensee which have so often been recognized by the Arizona Supreme Court as having vitality. This would be a very appealing case (pun intended) for the Arizona Supreme Court to in fact follow the direction of many other jurisdictions and drop these categories in favor of a simple and general overall duty that landowners “exercise reasonable care under all circumstances” regardless of an entrant's status.]