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Liability Based on Status as Invitee, Licensee, or Trespasser

§ 7.20.01
Key point 7-20.01. In most states, whether a church is liable for injuries occurring on its premises will depend on whether the victim is an invitee, a licensee, or a trespasser. Churches, like any property owner, owe the highest degree of care to invitees, a lesser degree of care to licensees, and a very minimal degree of care to trespassers. As a result, it is more likely that churches will be liable for injuries to persons who meet the definition of an "invitee."

In most states, the liability of a church for injuries caused on its premises depends upon the status of the victim, since the degree of care which a church must exercise in safeguarding and inspecting its premises depends entirely upon the status of the victim. Most courts hold that a person may be on another's property as an invitee, a licensee, or a trespasser. An invitee may be either a public invitee or a business visitor. Section 332 of the Restatement (Second) of Torts, which has been adopted in many states, specifies that:

(a) An invitee is either a public invitee or a business visitor.
(b) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.
(c) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.

Landowners owe the greatest duty of care to invitees, since invitees by definition are on a landowner's property because of an express or implied invitation. Most courts hold that landowners owe invitees a duty to use reasonable and ordinary care to keep their premises safe, including the responsibility of correcting those concealed hazards of which they know or reasonably should know, or at least warning invitees of such hazards. Even so, a landowner is not a guarantor of the safety of invitees. So long as a landowner exercises reasonable care in making the premises safe for invitees or if adequate warning is given about concealed perils, a landowner will not be responsible for injuries that occur. Many courts have refused to hold landowners responsible for an invitee's injuries caused by an obvious hazard or by a concealed hazard of which the invitee was aware. Some courts have concluded that church members attending church services or activities are invitees because they satisfy the definition of public invitee. For example, one court concluded that a church member who was injured when she tripped and fell over a wooden cross that had been used in a skit presented at a church meeting was a public invitee since she had been invited to enter the premises as a member of the public for a purpose for which the property was held open to the public.[236] Stevens v. Bow Mills Methodist Church, 283 A.2d 488 (N.H. 1971). See also Hedglin v. Church of St. Paul, 158 N.W.2d 269 (Minn. 1968).

A licensee generally is defined as one who is privileged to enter or remain on property because of the owner's express or implied consent. It is often said that invitees enter one's property by invitation, either express or implied, and that licensees are not invited but their presence is tolerated or merely permitted. In most states a landowner is responsible for warning licensees of hidden dangers of which the landowner is actually aware and to refrain from willfully or wantonly injuring them or recklessly exposing them to danger. The landowner has no duty to protect a licensee against hidden dangers of which the landowner is unaware. Thus, landowners are under no duty to make their premises safe by inspecting for and correcting hidden conditions that may cause injury.

A trespasser is a person who enters another's property without invitation or consent. In general, a landowner owes no duty to an undisclosed trespasser, and thus trespassers have no legal remedy if they are injured by a dangerous condition on another's property.[237] Adams v. Atlanta Faith Memorial Church, 381 S.E.2d 397 (Ga. 1989); Richards v. Cincinnati West Baptist Church, 680 N.E.2d 191 (Ohio App. 1996). However, landowners who are reasonably apprised of the presence of trespassers ordinarily must refrain from willfully or wantonly injuring them, and, according to some courts, must warn them of concealed hazards of which the owner is actually aware.[238] See, e.g., Reider v. city of Spring Lake Park, 480 N.E.2d 662 (Minn. App. 1992) (a church has a duty to warn trespassers of danger on its property if trespassers regularly use portions of the property).

In a leading case, the Michigan Supreme Court ruled that nonmembers who visit churches for noncommercial reasons are licensees to whom churches owe a minimal duty of care making it less likely that churches will be liable for injuries occurring to such persons while on church premises.[239] Stitt v. Holland Abundant Life Fellowship, 614 N.W.2d 88 (Mich. 2000). A woman (the "plaintiff") was injured when she tripped over a concrete tire stop in a church's parking lot. She was visiting the church to attend a Bible study. She sued the church, alleging that it negligently placed the tire stops and failed to provide adequate lighting in the parking lot. A jury ruled in favor of the church on the ground that she was a licensee rather than an invitee and therefore the church owed her a minimal duty of care.

The state Supreme Court accepted an appeal of the case "to determine the proper standard of care owed to individuals on church property for noncommercial purposes." The court began its opinion by noting that Michigan, like most states, recognizes three categories for persons who enter upon the land or premises of another: (1) trespasser, (2) licensee, or (3) invitee. Each of these categories corresponds to a different standard of care that is owed to those injured on the owner's premises. As a result, a landowner's duty to a visitor depends on that visitor's status.

The court provided the following summary of the duty owed by a landowner to each category of visitor:

A "trespasser" is a person who enters upon another's land, without the landowner's consent. The landowner owes no duty to the trespasser except to refrain from injuring him by "willful and wanton" misconduct.
A "licensee" is a person who is privileged to enter the land of another by virtue of the possessor's consent. A landowner owes a licensee a duty only to warn the licensee of any hidden dangers the owner knows or has reason to know of, if the licensee does not know or have reason to know of the dangers involved. The landowner owes no duty of inspection or affirmative care to make the premises safe for the licensee's visit. Typically, social guests are licensees who assume the ordinary risks associated with their visit. The final category is invitees.
An "invitee" is "a person who enters upon the land of another upon an invitation which carries with it an implied representation, assurance, or understanding that reasonable care has been used to prepare the premises, and make [it] safe for [the invitee's] reception." The landowner has a duty of care, not only to warn the invitee of any known dangers, but the additional obligation to also make the premises safe, which requires the landowner to inspect the premises and, depending upon the circumstances, make any necessary repairs or warn of any discovered hazards. Thus, an invitee is entitled to the highest level of protection under premises liability law. A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if the owner: (a) knows of, or by the exercise of reasonable care would discover, the condition and should realize that the condition involves an unreasonable risk of harm to such invitees; (b) should expect that invitees will not discover or realize the danger, or will fail to protect themselves against it; and (c) fails to exercise reasonable care to protect invitees against the danger.

The court concluded that persons who visit churches for noncommercial purposes should be regarded as licensees to whom a church owes a lower duty of care. It observed:

We conclude that the imposition of additional expense and effort by the landowner, requiring the landowner to inspect the premises and make them safe for visitors, must be directly tied to the owner's commercial business interests. It is the owner's desire to foster a commercial advantage by inviting persons to visit the premises that justifies imposition of a higher duty. In short, we conclude that the prospect of pecuniary gain is a sort of quid pro quo for the higher duty of care owed to invitees. Thus, we hold that the owner's reason for inviting persons onto the premises is the primary consideration when determining the visitor's status: In order to establish invitee status, a plaintiff must show that the premises were held open for a commercial purpose. With regard to church visitors, we [conclude] that such persons are licensees. … The solicitation of entirely voluntary donations by a nonprofit organization is plainly not a commercial activity. Accordingly, a church providing an opportunity for voluntary donations during a religious service that are in no way required to attend the service, i.e., passing a collection plate, does not transform one who attends the church service and elects to make a donation from a licensee into an invitee. Indeed, we imagine that many religious individuals would find it offensive to have their voluntary donations to a church regarded as part of a business or commercial transaction, rather than as a gift intended to aid in various religious good works.

In many cases, a church's liability for injuries occurring on its premises will depend on the victim's status. It is far more likely that a church will be found liable if the victim is an invitee, since a church owes a much greater duty of care to invitees than to either licensees or trespassers. This case makes a strong case for treating visitors to churches as licensees rather than invitees. However, the court cautioned that many states have adopted section 332 of the Restatement of Torts (a respected, but nonbonding legal text), that defines "invitee" to include "a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public." The court acknowledged that this language "creates an invitee status that does not depend on a commercial purpose." However, the court declined to adopt this definition.

A few states in recent years have abandoned the prevailing view of assessing a landowner's liability for injuries occurring on his premises by focusing on the status of the victim. These states have substituted a simple standard of reasonable care that a landowner owes to all lawful visitors. In determining a landowner's liability, the status of a victim is still relevant but not controlling. For example, the fact that an injured victim was a trespasser will reduce the landowner's duty of care since a reasonable person would not take the same steps to ensure the safety of trespassers that he would for invitees.

The great majority of cases involving accidents on church property have determined the church's liability on the basis of the status of the victim. Often, an accident victim's recovery of monetary damages against the church depends on his or her characterization as an invitee by a court, since this status creates the highest duty of care on the part of the church. If the victim is deemed to be a mere licensee, then often any monetary recovery is precluded. Many courts have concluded that accident victims are invitees of a church.

Slips and Falls Can Be Costly

While in most cases the amount of monetary damages involved in slip and fall cases is modest, there are exceptions, as a recent case in Indiana demonstrates. A surgeon slipped on a puddle of water in a break room in the hospital where he worked, and suffered nerve damage to one of his arms. He sued the hospital, claiming that it was negligent in allowing the puddle to remain on the floor for an unreasonable amount of time. But the real shocker was the jury's verdict—$17 million! A state appeals court upheld this verdict, rejecting the hospital's claim that it was grossly excessive.[240] St. Mary's Medical Center v. Loomis, 783 N.E.2d 274 (Ind. App. 2003). The court concluded that the accident caused permanent damage to the surgeon's arm (it atrophied and developed a tremor), and the extra burden placed on his "good" arm caused him to develop carpal tunnel syndrome. The end result was that the number of surgeries he performed annually dropped from 250 to just a few. The jury concluded that $17 million was a reasonable figure to compensate the surgeon for the loss of income for the remainder of his life.

What is the significance of this case to church leaders? It illustrates that seemingly simple accidents on church premises may result in astronomical liability, depending on the nature of the resulting injuries, the victim's job, and the impact of the injuries on the victim's ability to work. This case graphically demonstrates the importance of practicing sound risk management to reduce the risk of slips and falls on church premises.

1. CASES RECOGNIZING INVITEE STATUS

A number of courts have ruled that members and certain other persons who are injured on church property are entitled to recover damages because of their status as invitees.

Case studies
  • An Indiana appeals court concluded that a member who tripped over a plastic runner covering an aisle in a synagogue was an invitee rather than a licensee, and accordingly that the synagogue was legally responsible for his injuries. The court concluded that persons who are invited to enter upon premises for a purpose for which the premises are held open to the public or for business dealings with the owner of the premises are invitees who may recover for such injuries. The court concluded that members who attend activities at a church or synagogue are invitees under this test, since they are invited to enter the premises for the purposes for which they are held open to the public. Accordingly, a church or synagogue has a duty to protect them against negligent conditions on the premises, including improperly maintained aisle runners.[241] Fleischer v. Hebrew Orthodox Congregation, 504 N.E.2d 320 (Ind. App. 1987).
  • The Iowa Supreme Court ruled that the president of a state organization of church women who was injured when she fell down a darkened church stairway was an invitee of the church because she had been invited to appear and preside over a women's meeting, and her presence was of mutual benefit to herself and the church. Since she was an invitee, the court concluded that the church owed her a duty to exercise ordinary care to keep the premises in reasonably safe condition and that this duty had been breached.[242] Sullivan v. First Presbyterian Church, 152 N.W.2d 628 (Iowa 1967).
  • The Mississippi Supreme Court ruled that a church and its board of trustees could be sued by a member who was injured when she slipped and fell on a waxed floor while leaving a Sunday school class. The state supreme court ruled that the member was an invitee at the time of her injury: "Members of religious associations, in general … fall within the category of public invitees. Religious bodies do expressly and impliedly invite members to come and attend their services and functions. They hold their doors open to the public. While they do not charge admission fees … churches do depend on contributions … in order that they may continue to be open to the public. Therefore, a church member who does not exceed the scope of the church's invitation is an invitee while attending a church for church services or related functions." As a result, the member who slipped and fell on the waxed floor was an invitee to whom the church owed a high degree of care, rather than a mere licensee to whom the church owed only a minimal duty of care.[243] Clark v. Moore Memorial United Methodist Church, 538 So.2d 760 (Miss. 1989). Accord Heath v. First Baptist Church, 341 So.2d 265 (Fla.App.1977), cert. denied, 348 So.2d 946 (Fla.1977).
  • The New Jersey Supreme Court rejected a church's claim that a Sunday school teacher who was injured when she slipped and fell on an icy sidewalk in front of the church was not entitled to recovery as an invitee since she was a mere social guest. The court acknowledged that those who enter another's property as guests, whether for benevolent or social reasons, are licensees to whom the landowner owes a very minimal duty of care. The court concluded that the operation of a church is more than a mere social gathering: "To very many people it concerns a business of extreme moment, however unworldly." The court also insisted that the injured teacher's presence on church property was primarily for the benefit of the church, for "despite the voluntary and unrecompensed status of the plaintiff, she entered these premises as a matter of duty to the [church], and for the furtherance of the important interest, albeit a spiritual one, of the church, as distinguished from her own." The court accordingly held that the teacher was a business invitee to whom the church had breached its duty of reasonable care.[244] Atwood v. Board of Trustees, 98 A.2d 348 (N.J. 1953).
  • The Washington State Supreme Court concluded that a church member who was injured in a fall from a negligently assembled scaffolding while donating his labor in the construction of a church building was an invitee of the church since the business or purpose for which he had entered the premises was of economic benefit to the church. Accordingly, the church was found liable for breaching its duty of exercising reasonable care to render its premises safe from, or at least warn of, dangerous conditions of which the church knew or could discover with reasonable diligence.[245] Haugen v. Central Lutheran Church, 361 P.2d 637 (Wash. 1961).

2. CASES RECOGNIZING LICENSEE STATUS

In other cases, courts have concluded that a particular accident victim was present on church premises as a licensee. In most cases, a finding that an accident victim is a licensee will insulate the church from liability, since the only duty that a church owes to a licensee in most states is the duty to refrain from injuring a licensee willfully or wantonly and to exercise ordinary care to avoid imperiling the licensee by any active conduct. In some states, a church also owes a licensee a duty to correct concealed hazards of which it is actually aware or at least to warn a licensee of such hazards. But a church does not owe a licensee a duty to exercise reasonable care in maintaining church premises in a reasonably safe condition, and it does not have a duty to make inspections for dangerous conditions. This latter duty is owed only to invitees.

To illustrate, courts have found the following persons to be licensees and as a result have denied a legal remedy for injuries suffered on church premises: a member of an industrial basketball league that played its games in a church gymnasium;[246] Turpin v. Our Lady of Mercy Catholic Church, 202 S.E.2d 351 (N.C. 1974). a five-year-old girl who was visiting a church at which her grandmother was employed;[247] Lemon v. Busey, 461 P.2d 145 (Kan. 1969). a church member who was injured while walking across a church lawn seeking entrance into a church to light a candle for her daughter;[248] Coolbaugh v. St. Peter's Roman Catholic Church, 115 A.2d 662 (Conn. 1955). a policeman who was investigating a complaint that a church was being broken into;[249] Scheurer v. Trustees of Open Bible Church, 192 N.E.2d 38 (Ohio 1963). and a child who was burned by a fire while playing on church property.[250] Wozniczka v. McKean, 247 N.E.2d 215 (Ind. 1969).

Case studies
  • The Alabama Supreme Court ruled that a church was not responsible for injuries sustained by a visiting choir member who slipped and fell on church premises. The court based its decision on the status of the choir member while present as a guest on the other church's property. It concluded that a person attending a church service is a licensee while on the church premises, and not an invitee. It noted that a choir member visiting another church to participate in a special service is not an invitee since the person's presence does not provide a "material benefit" to the other church. It further observed that special church services are common, and that guests who participate in such services are "in much the same position as social guests enjoying unrecompensed hospitality in a private home by invitation." As such, they are licensees. The court concluded that the church did not breach any duty it owed to the choir member as a licensee, since it did not willfully or wantonly injure her, and it was not aware of any condition of the floor that would cause an injury.[251] Hambright v. First Baptist Church, 638 So.2d 865 (Ala. 1994). Accord Prentiss v. Evergreen Presbyterian Church, 644 So.2d 475 (Ala. 1994); Davidson v. Highlands Church, 673 So.2d 765 (Ala. App. 1995).
  • A Michigan court ruled that a volunteer who was injured by a sliding glass door during a Vacation Bible School class at a church was a licensee to whom the church owed a minimal duty of care. The court noted that invitees are persons who enter the premises of another for the other's material or commercial benefit. It concluded that "we do not discern any basis upon which to conclude that [the victim] volunteered to provide child-care services for a material or commercial purpose rather than one of a spiritual, religious or social nature." The court noted that "a landowner owes a licensee a duty only to warn the licensee of any hidden dangers the owner knows or has reason to know of, if the licensee does not know or have reason to know of the dangers involved. The landowner owes no duty of inspection or affirmative care to make the premises safe for the licensee's visit." However, a landowner "is required to take into consideration that a child's ability to appreciate the full extent of the risk is different from that of an adult."[252] Kosmalski ex rel. Kosmalski v. St. John's Lutheran Church, 680 N.W.2d 50 (Mich. App. 2004). The court remanded the case back to the trial court to determine if a glass door used by children presents an unreasonable risk of harm.
  • A Washington court ruled that a man who accompanied a friend to a church-sponsored event at a member's home was a licensee to whom the church owed a minimal duty of care.[253] Neilson v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Saints, 2002 WL 31188444 (unpublished decision, Wash. App. 2002).

3. TRESPASSING CHILDREN

It is common for neighborhood children to play on church property. This may include skateboarding, bicycling, use of motorized recreational vehicles, basketball, baseball, or several other activities. Some of these activities expose minors to a significant risk of harm. Is the church legally responsible for injuries that may result? The answer depends on whether the victim entered onto church property because of an "artificial condition."

injuries caused by an artificial condition

If a minor is injured because of an artificial condition on church property, then the church's potential liability is described in section 339 of the Restatement (Second) of Torts, a respected legal treatise that is recognized in most states:

A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if:
(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

An artificial condition is any condition that does not naturally exist. For example, the following conditions would be artificial: a basketball court, swimming pool, parking lot, or playground equipment.

Case study. A New Jersey court ruled that a church may be liable for injuries sustained by a neighborhood child while playing on church premises. A church was located on a large lot without a fence.[254] Blackburn v. Broad Street Church, 702 A.2d 1331 (N.J. Super. 1998). The lot contained a low point where rain water accumulated. One day it rained quite heavily and a deep pond-like puddle formed in the low area. A three-year-old child who lived across the street often played on the church's property. She looked out the window of her home and noticed her tricycle on the church's property and wanted to bring it out of the rain. Her mother (the "victim") instructed the little girl to stay in the house and told her that she would retrieve the tricycle. The mother crossed the street to get the tricycle and noticed the large pond-like puddle that had accumulated on the church's property as a result of the rain. The tricycle was on the other side of puddle and the mother began walking around the puddle to retrieve it. Suddenly, she heard her little girl behind her saying that she would get the tricycle. The mother instantly realized that her daughter had walked into the large puddle and was in the middle of it. The mother was fearful that due to the young age of the child and given the depth of the water that the child was in danger. She immediately walked towards the child, but before she could reach her, she slipped in the mud under the water, fracturing her leg. The mother sued the church.
A state appeals court concluded that the church could be sued for the mother's injuries. It quoted the general rule from section 339 of the Restatement (Second) of Torts, and concluded that each of these conditions was met. First, the pastor knew that children played on the church's property. Second, the pastor was aware of the accumulation of water on the property after a heavy rain, and the risk this posed to small children. Third, the pastor should have realized that the flooding condition on the property created an unreasonable risk of serious harm to young children. Fourth, the burden of eliminating the danger was slight compared with the risk to children. The pastor testified that the cost of installing a fence to keep children from walking in the area was approximately $2,000. The court pointed out that the church in fact did install a fence following the incident. Fifth, the church failed to exercise reasonable care to eliminate the danger or otherwise to protect the children. At the time of the incident, "the church had taken no steps to remove the condition or to warn children of the danger."
The court noted that the Restatement addresses liability of property owners associated with injuries to children caused by artificial conditions on their property. It concluded that the "ponding effect" was an artificial condition: "The church buildings and the parking lot had been constructed on the property. The engineer testified that rain water from portions of the roof and from the stone driveway area contributed to the accumulation of water in the low area. The church building, with the resulting flow of rain water from the roof and the stoned parking lot were not natural conditions of the land, but instead were artificial conditions contributing to the accumulation of rain water on the property." The court concluded that if a church owes a duty of care to a trespassing child under the Restatement analysis summarized above, it also owes a duty of care to an adult rescuer. As a result, the church could be responsible for the mother's injuries incurred while attempting to save her child from the dangerous condition on the property.

injuries not caused by an artificial condition

Churches owe a minimal degree of care to trespassing children who are injured due to a natural condition (such as a tree or naturally occurring pond or lake). In general, the church must refrain from wantonly or willfully injuring such children.

Case study. An Ohio court ruled that a church was not responsible for injuries sustained by a minor who was injured while trespassing on church property.[255] Richards v. Cincinnati West Baptist Church, 680 N.E.2d 191 (Ohio App. 1996). A church owned a "water drenching machine" that was used at various church activities. The machine was designed to be connected to a hose, and anyone who hit a lever on the machine with a ball caused an individual in the machine to be drenched with water. When not in use, the church stored the machine against a wall in the back of the church. A "no trespassing" sign was posted by the church. In addition, neighborhood children were not permitted to play on church premises during the week. The pastor and his wife frequently chased uninvited children off the property. One day a 6-year-old boy entered the church's premises, walked around to the back of the church, and crawled onto the machine. He was injured when it fell on him. The boy's parents sued the church. They claimed that they were not aware that neighbor children were not allowed to play on church property, although they did acknowledge that they were aware of the "no trespassing" sign. A state appeals court ruled in favor of the church. It noted that the boy was a trespasser, and that a property owner's only duty with respect to a trespasser is to "refrain from wantonly or willfully injuring him." The parents admitted that the church had not acted wantonly or willfully, but they insisted that the church was liable for their son's injuries on the basis of the "dangerous instrumentality" rule. Under this rule, a property owner has a higher duty of care to a child trespasser when it operates hazardous equipment "the dangerousness of which is not readily apparent to children, on or immediately adjacent to a public place." The court concluded that this exception did not apply in this case, since the machine was not "on or immediately adjacent to a public place." To the contrary, the machine was "private property, behind the church building and up against a wall. It was not within easy reach of a child in a public area."

4. CONCLUSION

Ultimately, the liability of a church for injuries suffered on its premises depends upon how narrowly or expansively the courts of a particular state define the term invitee. As the cases previously discussed illustrate, there is some difference of opinion regarding the definition of this term. Clearly, however, those states that have adopted the Restatement (Second) of Torts definition of an invitee ordinarily will regard most participants in church activities and services to be invitees. The United States Supreme Court has observed:

In an effort to do justice in an industrialized urban society, with its complex economic and individual relationships, modern common-law courts have found it necessary to formulate increasingly subtle verbal refinements, to create subclassifications among traditional common-law categories, and to delineate fine gradations in the standards of care which the landowner owes to each. Yet even within a single jurisdiction, the classifications and subclassifications bred by the common law have produced confusion and conflict. … Through this semantic morass the common law has moved, unevenly and with hesitation, towards "imposing on owners and occupiers a single duty of reasonable care in all the circumstances."[256] Kermarec v. Compagnie Cenerale, 358 U.S. 625, 630-31 (1959).
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