Mar 18

New Premises Liability Case Law

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The Nebraska Supreme Court’s decision in Hodson v. Taylor et al has some interesting applications for Premises Liability Cases in Nebraska. The case, which just came down last week, addresses the Nebraska Recreational Liability Act, specifically who qualifies as an owner and premises liability issues.

First, it is interesting to note that the Court found that land owners surrounding a body of water with rights to use the water for water for recreational purposes are not necessarily owners of the body of water. The Nebraska Recreational Liability Act states that “land owners do not owe a duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.” However, where there are a number of homes surrounding, for example, a lake, the land owners may not actually own the water.

In Hodson, the home owners, whose daughter had brought friends over to swim and boat, were granted summary judgment on the basis of the Recreational Liability Act. However, the Nebraska Supreme Court reversed that decision. The Court explained that here, there was a Owner’s Association with mandatory membership. Owner’s association was deemed to be the actual owner of the water, and Hodson’s action was allowed to proceed against the home owners for his other claims beyond premises liability.

Similarly, Hodson’s claims against the Willer’s Cover Owner’s Association were allowed to proceed. Typically, the land owner must have superior knowledge of the potentially hazardous condition. Water is generally considered to be an open and obvious condition for which the owner will not generally have liability. The District Court granted summary judgment on this basis. However the Supreme Court clarified the test for open and obvious conditions. The mere fact that it is an open and obvious condition does not mean that owners can always escape liability. While invitees to land must take available precautions, owners can be liable where they “should anticipate the harm despite such knowledge or obviousness.”

Once a condition is deemed to be open and obvious, the court must also determine whether the owner should have known that people using the land would not protect themselves from the risk. If the owner should expect users to be distracted or believe it is worth the risk, the owner may still have a duty to warn or protect invitees.