Apartment visitor is an "invitee"; landlord owes greater duty than tenant

The law determines the legal duty of a land possessor to visitors based in part on a historic distinction between commercial invitees and social guests.  The latter are only "tolerated" [I guess we all have friends like that.] and the duty to them is lesser.  The premises must normally be made reasonably safe for business guests.   Essentially, the person invited to the premises for a business purpose is owed a broader duty to warn of, or repair, dangerous conditions, even if the visitor might be aware of the hazard, already.  A social guest is owed no duty to warn or repair if he or she was already aware of a danger.

 The Engler majority spent most of a decade attempting to eliminate the duty owed to both classes of visitors, primarily by expanding the "open and obvious" defect exception to the duty of warn, so that it eviscerated a landowners duty almost completely.  Four conservative justices re-wrote the law on "open and obvious" so that if a reasonably alert person could have detected a hazard, the landowner owed  no duty to fix it.  That "objective" standard applied even if the particular visitor was blind or a child or disabled.  The Engler majority also acted to re-define "invitees" so that only visitors with a pecuniary interest were protected, acting to exclude, for example, visitors to public buildings such as churches.

In Van Buren v. Woodstock Apartments, a unanimous panel of the Court of Appeals reminded the trial court that a social guest who is injured in the common area of an apartment complex is a business invitee, with respect to the landlord responsible for maintenance of the common areas.  Thus, a slightly higher duty is owed by the landlord to social guests of the tenant, and Van Buren's case was reinstated for decision by a jury.

Frankly, the historical distinctions among visitors, and the duties owed to them by various possessors of land, were anachronistic to begin with. They have been so scrambled and confounded by the actions of the "Engler majority" that they no longer bear any reasonable relationship to the expectations of the public at large or thoughtful public policy.  For example, a landlord owes a statutory duty to tenants to make the premises reasonably safe, but this statutory duty does not extend to social guests:  they have only common law rights that may be entirely defeated by the expanded "open and obvious" rule, even in the case of an extremely hazardous condition or extreme negligence. 

Furthermore, landowners continue to purchase liability insurance that served a legitimate public purpose and was properly underwritten in the past:  today, landowners are paying large sums for liability protection that is no longer supported by reasonable underwriting practices, because virtually all of the coverage offered is illusory and not likely to be necessary.

Perhaps the legislature or the judiciary will re-evaluate these rules created by judicial activists who were captives of the Chamber of Commerce and the insurance industry.  Don't hold your breath, in the meantime, waiting for a recognition of broader consumer protection or a reduction in premiums.