Court Considers Duty Association Owes to Persons Injured as a Result of Conditions on Common Area Property

This case involved claims for personal injuries against a Property Owners Association (“Association”) by an individual who was injured (“Plaintiff”) after falling off of a retaining wall located within Association’s common areas. The incident took place one night after Plaintiff, who resided in a neighboring complex unrelated to Association, was returning to his complex after visiting friends who owned units that were part of Association. As a result of injuries sustained in the fall, Plaintiff filed suit against Association alleging that it did not exercise ordinary care by failing to install a guard or rail on the top of the retaining wall.

The trial court granted summary judgment to Association after finding that, as a matter of law, Plaintiff was a “licensee” while on Association’s property and, as such, the only legal duty Association owed to Plaintiff was to warn him of hidden dangers, and the retaining wall was an open and obvious danger (not hidden). Plaintiff then appealed the trial court’s judgment contending that his status while he was on Association property was that of an “invitee,” and not a licensee, and as such, Association owed him a duty of ordinary care to fix dangerous conditions, such as an unguarded retaining wall.

On review, the appellate court discussed the basis for imposing premises liability on landowners in Arkansas and noted that there are three basic categories of persons who may be present on another’s property when they sustain an injury: trespasser, licensee, and invitee. The duty that the landowner owes to a person alleging an injury that was suffered on the landowner’s property depends upon their status as either a trespasser, a licensee or an invitee. Having determined that Plaintiff was not a trespasser on Association’s property at the time of his injury, the issue was whether he was an invitee or a licensee. In making that determination, the appellate court stated that it is important to look to: