Be our guest, be our guest
Watch your step, may we suggest
From known dangers, we’ll protect
But we have no duty to inspect!
If Beauty and the Beast took place in modern-day Missouri instead of 18th century France, those probably would have been the words to “Be Our Guest.” That’s because property owners in Missouri do not have a duty to inspect their premises for the safety of their social guests, also known as “licensees.” On the other hand, property owners must inspect their premises for dangerous conditions in order to protect customers or clients, a.k.a. “invitees.” In the recent case Scholdberg v. Scholdberg, No. WD 81874, 2019 WL 2344263 (Mo. Ct. App. June 4, 2019), the Missouri Court of Appeals, Western District reaffirmed this distinction, reminding property owners across Missouri of its ongoing importance.
In Scholdberg, Sherri Scholdberg was staying at the home of her ex-husband, Kurt Scholdberg. Kurt invited Sherri to live in his home rent free so Sherri could walk to work while she saved up to buy a car. Therefore, Sherri was Kurt’s licensee—she lived as a guest in Kurt’s home and provided him no commercial or business benefit. One day, Sherri leaned against a railing (the “top railing”) on Kurt’s front porch. As she leaned, the railing gave way, causing Sherri to fall and injure herself.
Sherri brought a negligence suit against her ex-husband on a premises liability theory, alleging that Kurt knew of the top railing’s dangerous condition and failed to either warn her or fix the railing. Sherri based her argument on the fact that Kurt and their son Sean previously removed from the porch a second, similar railing (the “bottom railing”). Upon removing the bottom railing, Sean noticed that the brackets connecting the railing to the stairs were rusty. Kurt and Sean, however, neither inspected nor planned to repair the top railing.
When Sherri did not contest her status as a licensee, Kurt moved for summary judgment, arguing that Sherri could not establish an essential element of her claim: that Kurt had actual knowledge of top railing’s dangerous condition. The trial court agreed and granted the motion for summary judgment, holding that Kurt owed Sherri “the duty to make safe only those dangers of which he had knowledge” because Sherri was only a licensee.
Sherri disagreed with the trial court’s finding and appealed to the Missouri Court of Appeals, Western District. She argued that because Kurt knew that the bottom railing had rusty brackets, a jury could infer Kurt’s actual knowledge of the top railing’s dangerous condition.
The Missouri Court of Appeals began its analysis with an overview of Missouri law on premises liability, stating that the “distinction between licensees and invitees is of critical import.” To invitees, premises owners in Missouri owe a duty of reasonable care to protect against “known dangers and those that would be revealed by inspection.” To licensees, premises owners owe a duty only to “make safe dangers of which the possessor is aware.”
Missouri courts have maintained this formulation for decades despite opportunities to alter the duties. In the 1969 case Wells v. Goforth, the Missouri Supreme Court declined to heighten the duty owed to licensees, stating that “a possessor of land should [not] be subject to liability for bodily harm caused to gratuitous licensees by a natural or artificial condition thereon unless the possessor is himself aware of the condition.” Three decades later in Carter v. Kinney, the Missouri Supreme Court again “declined the invitation to abolish the distinction between licensees and invitees.”
The Missouri Supreme Court explained that the distinction between duties owed to invitees and licensees is not arbitrary, but rather is the result of “a careful and patient effort by courts over time to balance the interests of persons injured by conditions of land against the interests of possessors of land to enjoy and employ their land for the purposes they wish.” The Carter court felt that “abandon[ing] the careful work of generations . . . seems–to put it kindly–improvident.”
Against this backdrop of Missouri case law, the court in Scholdberg analyzed Sherri’s argument that a jury could infer Kurt’s actual knowledge of the top railing’s dangerous condition from his knowledge of the bottom railing’s rusty brackets. The court stated that this argument presumed a duty to inspect for dangerous conditions about which the premises owner should have known. Such a duty to inspect would effectively collapse the distinction between licensees and invitees, directly contradicting decades of Missouri case law.
The Missouri Court of Appeals ultimately concluded that the trial court was correct in granting Kurt’s motion for summary judgment, in part because property owners in Missouri do not owe licensees a duty to inspect. In issuing this opinion, the court signaled to Missouri property owners that the distinction between invitees and licensees remains crucial for determining premises liability.
It matters in Missouri
Depending on the designation
You owe a different obligation!
This article was written by HeplerBroom 2019 Summer Associate Nicholas A. Scholz.