Memorial Day 2020 was different from any other Memorial Day because of the COVID-19 pandemic. But if everything goes according to the plan, by Labor Day we should be able to start having guests over and fire up a BBQ. In this Law Blog, Memorial Day edition, I want to talk about social guests and social hosts, where one man’s hospitality can become another man’s hospital bill, and one man’s open embrace can become another man’s courthouse race.
Key terms: licensee vs. invitee
The technical term for this area of law is “premises liability law”. It’s based on common law, which explains why some concepts sound rather archaic and outdated.
There are two visitor classifications in common law: invitees and licensees. An invitee enters the property for a purpose connected with the owner’s business, while a licensee enters the property for his own purposes. (There is a third category, a trespasser, which refers to a person who enters the property without an invitation. This is outside the scope of this discussion).
The question essentially turns on whether the landowner derives an actual or potential pecuniary benefit from the visit. The person who stands to attain material benefits from his guest in all fairness can be held to a higher standard of care than a person who is guided by purely altruistic motives.
The main difference between licensees and invitees is this: the property owner might have a duty to warn an invitee of the dangers that are unknown to him, while with the licensees that duty to warn only applies to the dangers that are known to the owner.
Host’s liability to a social guest
In Washington, a social guest is classified as a licensee. This status makes it much harder for the guest to prove that the host is at fault, and, on a flip side, makes it much easier for the host to defend against the guest’s claims in court. As a general rule,
A SOCIAL HOST IS NOT RESPONSIBLE FOR THE GUEST’S INJURIES CAUSED BY A HIDDEN DANGER ON THE PROPERTY IF THE HOST IS NOT AWARE OF THE DANGEROUS CONDITION. AND HE OWES HIS GUEST NO DUTY TO WARN OR PROTECT FROM AN OPEN AND OBVIOUS DANGER.
The guest takes the premises as the host himself uses it. And the host is not expected to take any special precautions beyond what he does for himself or his family to keep the house safe. Here, the common law tells us in so many words that what’s good for the goose is good for the gander.
BUT IF THE HOST KNOWS OF A DANGEROUS CONDITION AND THINKS THAT THE GUEST WOULD NOT DISCOVER IT, HE MUST GIVE THE GUEST A WARNING OR FIX THE PROBLEM.
So if there is one thing you should take away from this discussion, remember: in the event you know your property has some hidden dangers that are not apparent at a first glance — unstable floor, uneven stairs, unsteady hand rails — let your guests know. You can even incorporate the warning into your “grand tour” of the house, or list potential problems in your digital invite. As long as the danger was made apparent to the guest, he can’t blame you. Seems fair, right? Right.
Why everyone needs to know the basic principles of premises liability
The cynics among us might say that if your guest sues you, take it as a hint and choose your friends wisely next time. That might be true to some extent, but not all lawsuits are filed by ungrateful guests. Sometimes, bad things happen to good people, and the black letter of law overpowers the ephemeral social constructs of friendship or loyalty.
I had a case where a social guest was engaging in horseplay at a friend’s house and took a tumble down the stairs. Harborview. Traumatic brain injury. Clinically induced coma. The guest’s insurance took care of his medical bills to the tune of a quarter million dollars. When he got better, the insurance company filed an action against the homeowner to recoup what they paid. Case in point: as the guest learned, the decision whether to sue the host was not his to make. And as the host learned, even though the guest was a loyal friend, the lawsuit became inevitable when things got out of control.