As a follow up to the previous line of posts on the principles of premises liability, the Appellate Division recently had the opportunity to apply the concepts and principles enumerated therein. In an unpublished decision, the Court in Olsen v. Sandax Inc. (A-2553-09) was faced with deciding what duty was owed by the defendant property owner as relating to the plaintiff, which under the particular facts made for a (relatively) interesting read.

In that case, the plaintiff was driving to a convenient store one morning when she began having problems with one of her tires. As such, she pulled into the defendant’s parking lot to see what was wrong; the defendant-restaurant, which solely catered private events, was closed on the morning in question and its parking lot was empty. When the plaintiff stepped out of the car to examine her tire for any problems, she stepped into a pothole and seriously injured her ankle. Consequently, the question ultimately became one of what ‘status’ classification the plaintiff should fall under (i.e., invitee, licensee, or trespasser), which in the context of premises liability, determines the duty of care to be applied.

To this end, the plaintiff argued that she should be deemed an ‘invitee,’ while the defendant contended that she should be considered a ‘trespasser’; the trial court went for the middle ground, holding that the plaintiff was a ‘licensee.’ The Appellate Division affirmed the trial court’s conclusion, stating that the parking lot “was open to a major thoroughfare, . . . the business took no steps to close off the parking lot from ingress and egress from the public roadway; [and] there was no indication or evidence that [plaintiff] had intended to park or store her vehicle on the premises.” Thus, even though the restaurant was closed, and despite the fact the plaintiff was not on the premises for any purpose related to the defendant’s business, the Court nevertheless found the plaintiff was to be treated as a licensee, meaning that the defendant was under a duty of care to warn the plaintiff of any condition(s) of the premises that the owner knew or had reason to know created an unreasonable risk of injury. Therefore, in order to adequately protect one’s interests, people should always exercise more diligence than thought to be necessary.