King v. Jackson , 302 Ark. 540 ( 1990 )

Dale Price, Justice.

This is an appeal from an order granting summary judgment in favor of the appellees. We affirm.

The facts are that the appellant was interested in buying some land located behind the appellees’ home. Thinking that the appellees owned the land, she visited their home one evening after dark. She was invited in and inquired about the land. The appellees informed appellant that they did not own the land in question, and at that point, the appellant proceeded to leave the house. As she stepped through the doorway onto the front porch, she stumbled over some shoes, then tripped over some cane poles and fell, sustaining a back injury.

Some months later, the appellant sued the appellees, claiming she was an invitee on the land, and the appellees failed to use ordinary care in keeping their porch and doorway free from obstructions. In the alternative, she alleged that, even if she were a mere licensee, the appellees still owed a duty of ordinary care because they knew, or should have known, the appellant was in a position of danger.

The appellees filed a motion for summary judgment which was granted. The court found that the appellees owed the appellant only a duty not to cause her injury through willful or wanton conduct, and no such conduct occurred here. The court further determined that there was no support for the appellant’s claim that the appellees knew or should have known appellant was in a position of danger.

When summary judgment is requested, the moving party has the burden of proving there are no genuine issues of fact remaining. Smith v. Gray, 300 Ark. 401, 779 S.W.2d 173 (1989). On appeal, the evidence is viewed most favorably to the party resisting the motion, all doubts and inferences being resolved against the moving party. Rickenbacker v. Wal-Mart Stores, Inc., 302 Ark. 119, 788 S.W.2d 474 (1990).

AMI 1106 defines the difference between a licensee and an invitee. Coleman v. United Fence Co., 282 Ark. 344, 668 S.W.2d 536 (1983), also defines the terms in simple language. It is clear the appellant was a licensee, not an invitee. She was not invited onto the premises in the literal sense, nor did her visit bring any benefit to the appellees. Appellant, having gone onto the land for her own purposes, fits the definition of a licensee.

The next question posed is what duty was owed appellant by the appellees? Generally, a landowner owes no duty to a licensee other than to refrain from injuring her through willful or wanton conduct. Baldwin v. Moseley, 295 Ark. 285, 748 S.W.2d 146 (1988). It is not claimed the appellees engaged in willful or wanton conduct. However, the appellant does argue that if a landowner discovers a licensee is in peril, he has a duty of ordinary care to avoid injury to the licensee. Baldwin v. Moseley, supra; AMI 1106(B). This duty takes the form of warning a licensee of hidden dangers if the licensee does not know or have reason to know of conditions or risks involved. See W. Keeton, Prosser and Keeton on Torts § 60, at 417 (5th ed. 1984).

The dangers in this case did not involve risks that the appellant might not have been expected to recognize. She admitted that,- prior to entering the house, she saw the shoes on the porch. The danger presented by the shoes cannot be said to have been hidden. Therefore, there is no fact question on whether the appellees had a duty to warn her about the obstructions on the porch.

Affirmed.

Hays, J., dissents.