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I. Introduction
The distinction in the law between an invitee and a licensee is important and can be the
difference between a property owner or possessor having greater duties under the law and being
liable or not for harm occurring on their property. This distinction is discussed herein regarding
the case of Figueroa v. North Park College, 879 F.2d 1427 (7th Cir. 1989), a case that involved
Mrs. Figueroa dropping her child off at the Child Care Center and then, while still in the parking
lot, being abducted at gunpoint, sexually assaulted, and slashed with a knife. The parking lot
owner, North Park College, employed off-duty police officers to patrol its campus and parking
lot and informally and formally (via written letter to the parents of children attending the Child
Care Center) allowed parents to use the parking lot. In the years preceding such incident, only
minor crimes occurred on campus. The questions that arise regarding her case are: (1) should
Mrs. Figueroa be treated as an invitee or licensee for purposes of a lawsuit and liability against
North Park for negligent failure to provide adequate security in the parking lot, and (2) is there
any other legal theory she can use to establish a duty of protection? For reasons that follow, she
should be treated only as a licensee with regard to North Park, but an invitee with regard to the
Child Care Center, and there is plausibly an alternative basis she could have used to establish a
duty of protection, but with regard to the Child Care Center and not North Park.
II. Analysis and Discussion
Answering the first question requires determining whether Mrs. Figueroa was a licensee
or invitee. “The common law assigns landowners varying duties of care to entrants depending on
the terms of entry.” Fisher v. United States, 995 F.3d 1266, 1270 (11th Cir. 2021).
If an individual enters without permission, he is owed the lowest duty of care as a
“trespasser.” If he enters with permission, he is owed an intermediate duty of care as a
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“licensee.” And if he enters pursuant to an invitation, he is owed the highest duty of care
as an “invitee.” Fisher, 995 F.3d at 1270.
A licensee is “one who enters upon the premises of another by permission for his own purposes.”
Kapka v. Urbaszewski, 47 Ill. App. 2d 321, 325, 198 N.E.2d 569, 572 (Ill. App. Ct. 1st Dist.
1964). A property owner is under no duty to make the premises safe for a licensee, but merely
must warn the licensee of concealed defects or dangers known to the owner and to refrain from
willfully injuring the licensee. Id, Kapka. Thus, a licensee goes upon another's property at her
own risk and must take the premises as she finds them. Id, Kapka, 47 Ill. App. 2d at 325.
In contrast to a licensee, an invitee is someone “invited by the possessor onto her land to
conduct business” (Edwards, 2016, p. 67-68). The possessor must gain some type of economic
benefit before the guest can be considered an invitee (Edwards, 2016, p. 68). The incident
involving Mrs. Figueroa occurred in Illinois in 1983 and to be an invitee Illinois law at such time
required that a person must enter the premises (1) by express or implied invitation, (2) in
connection with the possessor’s business or an activity they conduct or allow on the premises,
and (3) there is a “mutuality of benefit” or a benefit to the owner or possessor from doing so.
Figueroa, 979 F.2d at 1431. All three elements must be satisfied to be an invitee. Id.
Under above criteria, Mrs. Figueroa was a licensee and not an invitee. North Park
permitted parents with kids at the Child Care Center (including Mrs. Figueroa) to use the parking
lot without any benefit to or business purpose or activity of North Park being furthered by doing
so. As such, Mrs. Figueroa was a licensee. Because North Park derived no benefit from Mrs.
Figueroa using or being on its parking lot, the abovementioned third element for being an invitee
(mutuality of benefit) is not satisfied and for such reason she was not an invitee. Id, Figueroa,
979 F.2d at 1431-1433. For these reasons, Mrs. Figueroa was a licensee and not an invitee.
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Moreover, even if Mrs. Figueroa were deemed an invitee the duty of care North Park
owed her was not breached. Specifically, the duty a landowner owes invitees is “to exercise
reasonable care to protect against danger from a condition on the land that creates an
unreasonable risk of harm of which the owner or occupier knew or by the exercise of reasonable
care would discover.” Cobb v. James Constr. Grp., LLC, 2021 U.S. App. LEXIS 30554, *7 (5th
Cir. 2021); Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 161 n. 6 (1981)
(substantially the same). Such duty includes protecting invitees against criminal attacks on the
premises if “the criminal attack was reasonably foreseeable.” Reynolds v. CB Sports Bar, Inc.,
623 F.3d 1143, 1148 (7th Cir. 2010); Hill v. MM Gas & Food Mart, Inc., 351 Ga. App. 708
(2019). Here, no prior serious crimes occurred in the parking lot, only minor crimes previously
occurred in the nearby vicinity in the years preceding such attack, and North Park apparently had
no knowledge indicating a risk of serious crime was reasonably foreseeable. As such, it was not
reasonably foreseeable for North Park to conclude that anyone using the parking lot faced an
“unreasonable risk” of the serious crimes Mrs. Figueroa experienced. Illinois courts have in
similar circumstances held that crimes occurring in parking lots are not reasonably foreseeable.1
Opposing views that argue Mrs. Figueroa was an invitee of North Park cannot be
reconciled with the foregoing facts and authorities. Contending she was a business invitee of
North Park is frivolous since North Park incurred no real benefit from her presence on the
parking lot and the “mutuality of benefit” element required to be an invitee was not satisfied. Id,
Figueroa.
1See, e.g., Rodgers v. Hook-SuperX, Inc., 204 Ill. App. 3d 861, 562 N.E.2d 358, 149 Ill. Dec. 894 (1990) (no
duty to protect customer from attack in parking lot where actions of attackers were not reasonably foreseeable);
Getson v. Edifice Lounge, Inc., 117 Ill. App. 3d 707, 453 N.E.2d 131, 72 Ill. Dec. 826 (1983)(motorcycle gang-
related fight in parking lot outside tavern, which lasted less than a minute, was not reasonably foreseeable to tavern
owner).
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With regard to answering the second question, Mrs. Figueroa could have a plausible
alternative theory for establishing a duty of protection, but with regard to the Child Care Center,
not North Park. Such alternative theory would be based on the following pertinent facts.
First, the Child Care Center may be regarded as having a right to use the parking lot on
the basis that the parking lot was an easement needed to access and use its property, building,
and business. Easement owners owe the same duties of care to invitees as do possessors, and
injuries occurring on easements can give rise to liability of the person who has the easement.2
Second, the Child Care Center apparently also invited her to use the parking lot in
dropping off and picking up her child, and it did so in connection with the Child Care Center’s
business activities of taking custody of and caring for children, and the Child Care Center
obtained an economic benefit from doing so (namely, financial income from her for her child
attending such center when being dropped off and picked up from and through the parking lot).
On such basis, Mrs. Figueroa could be treated as a business invitee on the parking lot such that
the Child Care Center owed her a duty of protection. This was something the Court in Figueroa
was not called upon to decide because the Child Care Center was not a defendant in such case.
Third, it was reasonably foreseeable and known to the Child Care Center that serious
crimes could occur in the parking lot used for its child care business. This is so because
pedophiles, kidnappers, estranged parents, domestic abusers, rapists, angry ex-spouses, ex-
boyfriends, and ex-girlfriends, and others have been known to threaten, harass, assault, kidnap,
abduct, rape, and even kill children and the parent(s) of children in the parking lots of day care
and other child care centers. Indeed, most states have enacted laws prohibiting sex offenders (and
2See, e.g., Sutera v. Go Jokir, Inc., 86 F.3d 298, 306-309, 1996 U.S. App. LEXIS 14710, *29 (2d Cir. 1996)
(recognizing easement owner can be held liable for torts causing injury on easement); Cooper v. City of Reading,
392 Pa. 452, 140 A.2d 792, 796-97 (Pa. 1958) (municipality with power under easement could be liable as a
possessor of land for injury occurring on easement); Leichter v. Eastern Realty Co., 358 Pa. Super. 189, 516 A.2d
1247, 1250 (Pa. Super. Ct. 1986) (liability of easement holder for use of parking lot depended on whether holder was
"in possession" in light of its rights under the easement and the exercise thereof).
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some other criminals), domestic abusers, and others from living or being near daycare centers
precisely on the basis that they are huge risks of committing crimes harmful to children and
parents of children at daycare centers and in the parking lots of such centers (National Institute of
Justice, 2008). Such risks were obvious and reasonably apparent to those in the child care
industry in 1983 when this incident occurred.3 Thus, the Child Care Center would and should
have known that providing vigilant security to actively patrol and monitor the parking lots—
particularly during the times when parents pick up or drop off children—would be vital to
protecting parents and children from the serious risk of harm that any sex offenders, domestic
abusers, rapists, and others posed to parents and children in the parking lot. Under this plausible
theory, Mrs. Figueroa may have been able to establish a duty of protection and entitled to
recover, not from North Park, but from the Child Care Center since it would have had a such
duty of protection for business invitees on its easement (parking lot). Moreover, the standards
and holdings in Figueroa could easily apply to reach the conclusion that Mrs. Figueroa was a
business invitee of the Child Care Center.
III. Conclusion
What happened to Mrs. Figueroa was extremely tragic and avoidable. In this world full of
sinners where women and children are threatened and harmed by evil-doers, society should do
more to protect women and children, particularly from domestic abuse and from being abducted
and raped. The Bible expressly states that “if a man encounters a betrothed [married or engaged]
woman in the open country, and he overpowers her and lies with her, only the man who has done
this must die” (Berean Standard Bible, 2016/2020, Deuteronomy 22:25). Perhaps if society
followed such command and implemented the death penalty for violent rape, it would reduce the
3This knowledge is not necessarily something North Park College would or should have known, as it was a
mere college and not in the child care business, where child care professionals know these things. Thus, it would not
have been reasonably foreseeable to North Park to know of these things and risks of serious harm.
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number of incidents of such. Regarding Mrs. Figueroa seeking to hold North Park liable for what
she experienced, for reasons given above she was a licensee, not an invitee, of North Park and, as
such, was not entitled to recover from North Park. However, she was also a business invitee of
the Child Care Center and was on its easement (parking lot), and the Child Care Center knew or
should have known of obvious risks of serious crimes that can and do occur to parents and
children in parking lots of child care centers. For such reason, the Child Care Center had a duty
to vigilantly protect Mrs. Figueroa and all parents and children in the parking lot from criminal
acts by third parties. Because the Child Care Center did not fulfill such duty and such resulted in
harm to Mrs. Figueroa, this is a plausible alternative theory of recovery.
References
Cobb v. James Constr. Grp., LLC, 2021 U.S. App. LEXIS 30554 (5th Cir. 2021).
8
Cooper v. City of Reading, 392 Pa. 452, 140 A.2d 792 (Pa. 1958).
Edwards, J.S. (2016). Tort Law (6th Edition). Cengage Learning Incorporated: Boston, MA.
Figueroa v. North Park College, 879 F.2d 1427 (7th Cir. 1989).
Fisher v. United States, 995 F.3d 1266, 1270 (11th Cir. Fla. 2021).
Getson v. Edifice Lounge, Inc., 117 Ill. App. 3d 707, 453 N.E.2d 131, 72 Ill. Dec. 826 (1983).
Hill v. MM Gas & Food Mart, Inc., 351 Ga. App. 708 (2019).
Kapka v. Urbaszewski, 47 Ill. App. 2d 321, 325, 198 N.E.2d 569, 572 (Ill. App. Ct. 1st Dist.
1964).
Leichter v. Eastern Realty Co., 358 Pa. Super. 189, 516 A.2d 1247 (Pa. Super. Ct. 1986).
Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143, 1148 (7th Cir. 2010).
Rodgers v. Hook-SuperX, Inc., 204 Ill. App. 3d 861, 562 N.E.2d 358, 149 Ill. Dec. 894 (1990).
Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (1981).
Sutera v. Go Jokir, Inc., 86 F.3d 298 (2d Cir. 1996).
The Holy Bible: Berean Standard Bible. (2020). Biblehub.com. https://biblehub.com (Original
work published 2016).
National Institute of Justice. (2008, July 24). Sex offender residency restrictions: how mapping
can inform policy. Retrieved September 28, 2023, from
https://nij.ojp.gov/topics/articles/sex-offender-residency-restrictions-how-mapping-can-
inform-policy.
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