dissenting. I respectfully disagree that this case should have been disposed of by a directed verdict for the defendant. There was sufficient evidence from which a jury could have concluded that Brad Guthrie was an implied invitee. But even if that proof fell short, there was evidence from which the jury could have determined that Guthrie was a licensee.
Prosser defines licensees as those who enter another’s land with nothing more than consent, e.g., those taking shortcuts across the property or making merely permissive use of crossings and ways. Such permission may be tacit and may be manifested by the defendant’s conduct, or by the condition of the land itself. The owner owes no duty to make the premises safe for such persons, nor to warn them of dangers which are patent or obvious. There may, however, be a duty to warn such persons of hidden dangers known to the occupier-owner. While earlier cases frequently state there was no duty to licensees except to refrain from willful or wanton injury, the trend, however, “has been toward a gradual modification of this position.” W. Prosser and W. Keeton, The Law of Torts § 60, at 412 (5th ed. 1984).
The Restatement (Second) of Torts § 342 (1965), adopts a more contemporaneous view:
Dangerous Conditions Known to Possessor.
A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,
(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and
(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and
(c) the licensees do not know or have reason to know of the condition and the risk involved.
In a dissenting opinion to King v. Jackson, 302 Ark. 540, 790 S.W.2d 904 (1990), I cited language from Annotation, Danger to Licensee — Warning, 55 A.L.R.2d 525, § 2 (1957):
While in a number of cases general language may be found which seems to restrict a licensor’s duty to a licensee to that of refraining from wilful or wanton misconduct, or, at most, active negligence, the cases which have explicitly considered the question have frequently recognized that a licensor-landowner may be under an obligation of exercising reasonable care to warn licensees of hidden dangers known to the licensor.
That is said to be the law in most jurisdictions, F. Harper, F. James and O. Gray, The Law of Torts, § 27.9 (2d Ed. 1986) andis in accord with the general rule as stated in some of our cases: Baldwin v. Mosley, 295 Ark. 285, 748 S.W.2d 146 (1988); Webb v. Pearson, 244 Ark. 109, 424 S.W.2d 145 (1968); Cato v. St. Louis Southwestern Ry. Co., 190 Ark. 231, 79 S.W.2d 62 (1935). Others (cited in the majority opinion) give a different emphasis in stating the general rule and it strikes me that our cases reflect some uncertainty, although AMI 1103 and 1106 recognize that circumstances may impose a duty of ordinary care to avoid injury to a licensee.
There was ample testimony in this case from which it could be inferred that Alcoa knew or should have known that the public generally was using its bridge as a passageway across the highway, as an elevated platform from which to watch ballgames played on an adjacent field, on which to paint graffiti and as a place from which to drop objects on motorists passing below. In short, public access and usage of the bridge for various purposes over a period of time were clearly established. Coupled with that was evidence that Alcoa knew, or should have known, that a latent, hazardous condition existed which might not be readily apparent—a missing piece of grating. Photographs, as well as testimony, demonstrate that the absence of the grating from the crosswalk on the bridge constituted a hazard which might easily go unnoticed, particularly at night.
When those facts are viewed in their strongest light, reasonable minds could readily differ as to whether Alcoa should have known of the danger and given warning or removed the hazard. That being so, it was not error to deny the motion for a directed verdict.