Keller v. Holiday Inns, Inc.

Decision Date04 November 1983
Docket NumberNo. 14270,14270
Citation671 P.2d 1112,105 Idaho 649
CourtIdaho Court of Appeals
PartiesGail KELLER, Plaintiff-Appellant, v. HOLIDAY INNS, INC., a Tennessee corporation, Great Western Investment Co., and Winegardner & Hammons, Inc., Defendants-Respondents. Gene BURMAN and Joan Keller Burman, husband and wife, Plaintiffs-Appellants, v. HOLIDAY INNS, INC., a Tennessee corporation, Great Western Investment Co., and Winegardner & Hammons, Inc., Defendants-Respondents.

Charles L. Hay, Elam, Burke, Evans, Boyd & Koontz, Boise, for plaintiff-appellant.

Patrick D. Furey, Imhoff & Lynch, Chartered, Boise, for defendants-respondents.


We are asked to decide whether a property owner who rents space in a building to a business lessee, and who authorizes the lessee to bring unsafe appliances upon the property, may be liable to the lessee's employees for harm caused by the appliances. The principal parties claiming injury are Gail Keller and her sister, Joan Keller Burman. When the alleged injuries occurred, the Keller sisters were employed by the proprietor of a gift shop located upon leased space within the Holiday Inn of Boise. The appliances in question were large iron security gates fabricated and placed on the premises by the gift shop proprietor. The gates surrounded the gift shop when it was closed; but when the gift shop was open, the gates were folded, moved on wheels, and stored elsewhere in the motel. The gates were known to be unstable and prone to collapse. Each of the Keller sisters has alleged that she was physically injured by the security gates while attempting to move them to or from their place of storage.

The Keller sisters sued Holiday Inns, Inc., and certain affiliated entities. 1 The Holiday Inn group moved for summary judgment against the sisters' claims. The group contended that the motel, as a lessor, owed no duty of care to the lessee's employees; and that, even if such a duty were owed, it would not extend to the known risk presented by the unsafe security gates. The district court granted the motion. We reverse.

Part I of this opinion contains an overview of negligence liability. We identify the elements of negligence liability and the general grounds upon which one person may be said to owe a duty of care to another. In Part II we examine the duties imposed upon land possessors to protect entrants upon the property from dangerous conditions and from the harmful activities of third persons. We adopt the modern view that a land possessor's duty is not entirely excused, but liability may be limited, when an invitee encounters a known risk on the property. In Part III, we apply this view to the instant case, focusing upon the known danger and the upon motel's status as a lessor. We conclude that Holiday Inn owed the Keller sisters a duty of care and that the extent of liability, if any, flowing from alleged breach of this duty must be resolved at trial upon remand.


The elements of a cause of action for negligence are familiar. They consist of a duty, recognized by law, requiring the defendant to conform to a certain standard of conduct; a breach of the duty; a causal connection between the defendant's conduct and the plaintiff's injuries; and actual loss or damage flowing from those injuries. E.g., Brizendine v. Nampa & Meridian Irr. Dist., 97 Idaho 580, 583, 548 P.2d 80, 83 (1976). When these elements are established, the defendant is subject to liability. Actual liability will be imposed if the defendant has no defense to the plaintiff's cause of action. RESTATEMENT (SECOND) OF TORTS § 5 (1965) [hereinafter cited as Second Restatement].

Our initial focus is upon the question of duty. Duty is a requirement that one conduct himself in a particular manner with respect to a risk of harm. Second Restatement § 4. The scope of the duty is defined by the nature of the risk and by the persons endangered by it. A risk may arise from a number of sources, including the actor's own conduct, the conduct of others, or a condition on the actor's property.

Every actor has a general duty to use due care not to injure others by his own conduct. E.g., Harper v. Hoffman, 95 Idaho 933, 523 P.2d 536 (1974). In such cases the actor's conduct has brought him into close contact with the risk and the persons endangered. However, an actor's duty to protect others from the conduct of third parties or from conditions on property is more limited. The scope of duty in such cases is measured by the knowledge which the actor had or should have had concerning the risk, and the control which the actor should or could have exercised over the source of the risk and the persons endangered. Where the risk is created by the conduct of third parties, the criterion of control is emphasized. Harper & Kime, The Duty to Control the Conduct of Another, 43 YALE L.J. 886 (1934). In such cases, the courts customarily inquire into the existence of a special relationship between the actor and the third party or between the actor and the persons endangered. E.g., Joyner v. Jones, 97 Idaho 647, 551 P.2d 602 (1976); Davis v. Potter, 51 Idaho 81, 2 P.2d 318 (1931). Conversely, in cases involving conditions on land, the knowledge criterion often is emphasized. Keeton, Personal Injuries Resulting from Open and Obvious Conditions, 100 U.PA.L.REV. 629 (1952). The courts have treated a land possessor's superior knowledge of dangerous conditions on his property as the basis for imposing upon him a duty to protect others entering the property. E.g., Tommerup v. Albertson's, Inc., 101 Idaho 1, 3-4, 607 P.2d 1055, 1058-59 (1980).

The criteria of knowledge and control often are closely related. In a case involving unsafe conduct by a third party, one's special relationship to the third party or to the persons endangered may provide both superior knowledge of the potential harm and a way to control it. Similarly, in a case involving conditions on land, the landowner's possession of the property may afford him superior knowledge of a danger as well as the ability to control it. However, the question of duty becomes more nettlesome when the criteria of knowledge and the control are not coextensive. The courts confront this problem when the landowner could control the unsafe conduct of a third party on his land, or an unsafe condition on the land, but the landowner's knowledge of the danger is not superior to that of other persons entering the land. We now examine the landowner's duty in those circumstances.


We recognize at the outset that there is no single duty owed by a land possessor to all persons entering his land. The law traditionally has imposed varying duties, depending upon the nature of the visit and the entrants' expectations of what they will encounter on the property.


A person who enters the property of another with passive permission or as a mere social guest traditionally has been held to understand that he must take the land as the possessor uses it. This entrant, classified by the law as a licensee, is expected to be alert and to protect himself from the risks he encounters. Accordingly, the duty owed to a licensee with respect to such risks is narrowly restricted. The possessor is required simply to share his knowledge of dangerous conditions or dangerous activities with the licensee. When such a warning has been given, the possessor's knowledge is no longer superior to that of the licensee, and the possessor's duty extends no farther. Second Restatement §§ 342-343A, and § 343 comment b. Of course, the possessor must avoid willful and wanton injury to the licensee. But ordinary negligence allowing an unsafe condition or activity on the property is insufficient, by itself, to impose liability to a licensee. Wilson v. Bogert, 81 Idaho 535, 347 P.2d 341 (1959).

However, the law has adopted a more protective view toward an invitee. An invitee is a person who enters upon the land for a purpose connected with the business conducted there, or for a visit which reasonably may be said to confer or to anticipate a tangible benefit to the possessor. Wilson v. Bogert, supra. The invitee is not required simply to take the property as the possessor uses it. Rather, the invitee is entitled to assume that the property has been made safe for him to enter. Accordingly, the possessor has not only a duty to disclose dangerous conditions, but also the duty to exercise reasonable affirmative care to keep the premises safe for an invitee. Feeny v. Hanson, 84 Idaho 236, 371 P.2d 15 (1962).

We acknowledge that this traditional distinction between the duties owed to licensees and invitees has been the subject of persistent criticism. E.g., W. PROSSER, HANDBOOK OF THE LAW OF TORTS 398-99 (4th ed. 1971); Shindurling, The Law of Premises Liability--Is a Reasonable Standard of Care Unreasonable? 11 IDAHO L.REV. 67 (1976). A few jurisdictions have abandoned or limited the rigid distinctions among duties owed to different categories of entrants upon land. E.g., Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 (1968); Antoniewicz v. Reszcynski, 70 Wis.2d 836, 236 N.W.2d 1 (1975). However, our Supreme Court on several recent occasions has declined invitations to do so. Huyck v. Hecla Mining Co., 101 Idaho 299, 612 P.2d 142 (1980); Springer v. Pearson, 96 Idaho 477, 531 P.2d 567 (1975); Mooney v. Robinson, 93 Idaho 676, 471 P.2d 63 (1970).

Consequently, we deem ourselves constrained to accept the distinction between a licensee and an invitee, and to identify the relevant category in this case. Holiday Inn rented space in its building to the gift shop proprietor for a business purpose. The employment of personnel by the gift shop proprietor clearly was within that purpose. Consequently, we hold that these employees were invitees. Our inquiry is narrowed to the duty owed by the land possessor to an invitee.


The broad duty owed an invitee has not always been fully...

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  • Recent Utah Tort Developments
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