HACK V. BAKER
TORTS: Premises Liability; "Implied Invitee"
PUBLISHED: PANEL: DIXON (PRESIDING JUDGE) WITH THOMPSON AND HENRY (SJ) CONCURRING
REVERSING AND REMANDING (JEFFERSON CIR. CT., MORRIS, J.)
DATE RENDERED: 5/18/2007
CA reverses and remands TC entry of SJ for defendants in this trip-and-fall case. (Jeff. Cir. Ct., Hon. Geoffrey P. Morris, judge, presiding).
Appellees Baker moved into a new home in June across the street from Appellant Hack. Appellees Insight and G&C installed video cable at the Baker’s home, failing to bury the coaxial cable and leaving it laying on the ground at the Baker residence. The Bakers placed three separate calls to Insight to remedy the hazard, but Insight failed to do so.
The neighbors were cordial and the Hacks visited with the Bakers in their home several times by invitation. Appellant Hack also testified that the custom in the neighborhood was for families to frequently traversed other families’ yards while playing and socializing. (The parties live on a cul-de-sac with no sidewalks). Appellant Hack tripped on the cable, shattering his right arm, while playing in a yard adjacent to the Bakers and running through the Bakers’ nearby yard; the Bakers were not present.
Hack sued the Bakers and Insight; the Bakers and Insight claimed he was a trespasser to whom they owed no duty; Hack argued he was an "implied invitee" (licensee), and Appellees owed him a duty to exercise reasonable care under the circumstances, which they failed to do. The TC agreed that Hack was a trespasser and granted SJ to the Bakers, also holding that Insight stood in the shoes of the Bakers on liability.
CA holds that the facts as Hack has alleged them create a genuine issue of material fact as to whether Hack was a trespasser or licensee. "THe custom of the neighborhood of brief entry onto each other’s yards coupled with the Bakers’ failure to voice objection creates a genuine issue of their acquiescence to such conduct. This Court cannot say that Hack was a trespasser as a matter of law." The CA also holds that a genuine issue of material fact exists as to whether the cable’s location constituted an unsafe condition on the premises which created an unreasonable risk of danger to those living in the neighborhood.
By John Hamlet