# Heins v. Webster County

> Nebraska Supreme Court · August 23, 1996 · 250 Neb. 750

URL: https://www.frixlaw.com/law-library/cases/9688051

## Case

- **Full name:** Roger W. Heins, Appellant, v. Webster County, Nebraska, Doing Business as Webster County Hospital, Appellee
- **Court:** Nebraska Supreme Court
- **Decided:** August 23, 1996
- **Citations:** 250 Neb. 750; 552 N.W.2d 51; 1996 Neb. LEXIS 171
- **Precedential status:** Published
- **Opinion:** Dissent by Fahrnbruch
- **Judges:** White, Caporale, Fahrnbruch, Lanphier, Wright, Connolly, Gerrard
- **Cited by:** 77 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Fahrnbruch, J.,
dissenting.
I respectfully dissent from the majority opinion.
The majority opinion states that modern society does not contemplate such traditional classifications as invitee and licensee. However, the same majority opinion states that the majority of states have retained the common-law distinctions of invitee and licensee.
In Nebraska, we have had no problem in assigning liabilities based upon invitee and licensee status, as witnessed by the recent unanimous opinions McIntosh v. Omaha Public Schools, 249 Neb. 529 , 544 N.W.2d 502 (1996), and Blackbird v. SDB Investments, 249 Neb. 13 , 541 N.W.2d 25 (1995).
The majority opinion dismantles longstanding common law by eliminating the concept of licensee, thereby forcing a landowner to treat a person who is allowed to enter or remain upon premises with the same standard of care as a person who is invited onto the premises for the mutual benefit of both landowner and invitee.
Under the majority opinion, a landowner owes a duty of reasonable care to an individual who becomes injured by conducting activities on the premises without the landowner’s express permission or knowledge. From this moment on, public and private institutions, as well as residential homeowners, must be especially aware of unknown, uninvited individuals who take advantage of their land and facilities.
In McCurry v. Young Men’s Christian Assn., 210 Neb. 278 , 313 N.W.2d 689 (1981), an individual brought an action against a Young Men’s Christian Association (YMCA) as a result of an injury which arose from a fall while the individual was playing basketball on an outdoor asphalt playground owned by the YMCA. The plaintiff was not a member of the *763 YMCA and had not obtained any express permission to use the playground. This court held that the plaintiff was a licensee and affirmed the trial court’s directed verdict in favor of the YMCA. Under the majority’s opinion, YMCA’s and like institutions will be subject to lawsuits which hold them to a duty to treat such uninvited users of their facilities with the same standard of care as the paying members of the institution.
This court should not enact public policy which, in effect, socializes the use of privately owned property to the extent that the landowner owes the same duty to all, except trespassers, who enter the owner’s land. It is not the function of the court to create a liability where the law creates none. Acton v. Wymore School Dist. No. 114, 172 Neb. 609 , 111 N.W.2d 368 (1961).
Under the majority’s opinion, a homeowner would have potential liability for any number of not only uninvited but unwanted solicitors or visitors coming to the homeowner’s door.
Caporale, J., joins in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9688051. Public record. Not legal advice.