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Davis v. Gabriel12/11/1990
pproved by our supreme court in {PA}
, states:
One who on behalf of the possessor of land erects a structure or creates any other condition on the land is subject to the same liability, and enjoys the same freedom from liability, as though he were the possessor of the land, for physical harm caused to others upon and outside of the land by the dangerous character of the structure or other condition while the work is in his charge.
The duty of the possessor of land to invitees appears in Restatement Sections 343 and 343A, which our supreme court approved in . Restatement Section 343 reads:
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
Restatement Section 343A(1) states:
A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the Possessor should anticipate the harm despite such knowledge or obviousness.
Accord SCRA 1986, 13-1310 (uniform jury instruction on duty to business visitors). It is undisputed that Davis was an invitee because he was a business visitor. See Restatement § 332; J.A. Robinson Sons, Inc. v. Ellis, 412 S.W.2d 728 (Tex. App. 1967); SCRA 1986, 13-1303 (uniform jury instruction defining "business visitor").
Of particular pertinence to this case is the recognition in Section 343A that a possessor of land may have a duty to protect invitees against obvious dangers. To be sure, the possessor is entitled to assume that invitees will exercise reasonable care and has no duty to take steps that are necessary only to protect invitees who are negligent. See Restatement § 343A comment e; Ward v. K Mart Corp., 136 Ill. 2d 132, 554 N.E.2d 223 (1990). Cf. ) (no duty to warn of obvious danger). Nevertheless, one who exercises reasonable care may still be injured by an obvious danger. The invitee may be distracted, Ward v. K Mart Corp., or may proceed in the face of an obvious danger because of the demands of employment. Compare ) and Konicek v. Loomis Bros., 457 N.W.2d 614 (Iowa 1990) with Chareas v. Township High School Dist., 195 Ill. App. 3d 540, 553 N.E.2d 23 (1990). As explained in comment f to Section 343A:
There are... cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection....
Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee's attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. Such reason may also arise where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk. In such cases the fact that the danger is known, or is obvious... is not... conc
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