Landowners Owe Implied Licensees Duty of Care for Known Unsafe Conditions

June 1, 2007

The Court of Appeals just published Hack v. Baker, which discussed the legal status of a child entering on a neighbor’s property at play and the legal duty owed to that child. Hack resided with his family in a residence located in a cul-de-sac. (Think Ed, Ed, and Eddy). One evening many of the families that lived in the cul-de-sac were out with their children playing in their various yards. However, the Bakers were not out that night. While playing on a property that was immediately adjacent to the Bakers’ residence, Hack ran through the Bakers’ yard and tripped over an unburied television coaxial wire. He then fell onto another neighbor’s driveway and shattered his right arm near the elbow.

Baker and Insight Communications contended that Hack was a trespasser to whom no duty was owed. The Circuit Court agreed and granted summary judgment. On appeal Hack claimed he had implied permission or invitation of the Bakers to be briefly on the property. He alleged it was the custom of those living in the neighborhood to allow, and even, expect, their neighbors to cross each other’s properties.

The Court of Appeals believed there were genuine issues of fact as to Hack’s status. It noted; customary use of property, without objection from the owner, “may give rise to an implication of consent to such use to the extent that the users have the status of licensees, where such habitual use or custom has existed to the knowledge of the owner… and has been accepted or acquiesced by him.””

This decision did not end the analysis, however. The question then became what duty the Bakers owed Hack if he was, in fact, a licensee. The Court concluded; “The key to the land occupier’s liability to the licensee lies in the knowledge of a condition which a reasonably prudent person would realize is dangerous to an unsuspecting licensee, should one come upon the premises.” Because the Bakers knew about the cable and Hack did not, genuine issues of fact existed as to whether the cable’s location constituted an unsafe condition, which created an unreasonable risk of danger to those living in the neighborhood.

As to Insight’s liability, the Court found that under Kentucky law, Insight stands in the shoes of the landowner in determining it’s duty to third parties injured by alleged negligence. While the Court did not believe this was necessarily a just result, it was constrained by precedent to agree.

This is an interesting case balancing the rights of landowners to be free from liability for trespassers, while at the same time considering the realities of suburban life. Again, think Ed, Ed and Eddy, the popular Cartoon Network about three kids who wreak havoc among their friends and neighbors in the cul-de-sac where they live. Certain questions of course immediately come to mind. Are the Bakers required to yell at the kids to “get off my lawn” every time one of the kids comes into the yard? (Remember that guy?) Better yet, are they required to put up no trespassing signs in their yard? At that same time, what do you expect moving to a cul-de-sac full of kids?

Of course the what’s really missing in this opinion is a discussion regarding indemnity. This is a classic Brown Hotel case, where the active negligence of Insight in leaving the cable unburied is the proximate cause of the injury. The liability of the Bakers is passive and based solely on their status as property owners. Clearly, these parties are not in para delecto, which is necessary for apportionment. It would appear that the Court should not concentrate so much on Insight’s liability to third parties, which is questionable, despite Kentucky precedent, but on Insight’s indemnification of the Bakers. If Insight is ultimately responsible for the injuries of Hack through indemnity of the Bakers, it has every incentive to step in and either defend the case or resolve it. This would place responsibility where it appears to belong, while maintaining the peace and quiet of cul-de-sac suburban life.

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