Duty Owed Invitees
The class of persons designated as invitees includes those who have come upon the land at the express or implied invitation of a possessor for the purpose of transacting some business within the scope of the invitation. They are sometimes called business visitors[i]. The duty of exercising ordinary care for the safety of business visitors may require one who invites the public to his/her premises to purchase goods to take measures different from those required of one inviting others to his/her private residence. An invitee must show that s/he was impliedly invited upon the premises by some allurement or inducement held out by the owner or person in control with intention and design[ii]. An invitee is entitled to expect that a possessor will exercise reasonable care to make the land safe for the invitee’s entry, or for his/her use[iii].
A land owner is required to maintain its property in a reasonably safe condition and has a duty to exercise due care to protect invitees from conditions that can result in injury. Whereas, a land owner has no duty to protect invitees from open and obvious dangers[iv]. However, even if a danger is open and obvious, a landowner owner may still owe a duty to protect an invitee if the risk of harm remains unreasonable.
A possessor owes an additional duty towards an invitee to exercise reasonable care to make the land safe for the reception of his/her invitee, or ascertain the actual condition of the land so that by warning the invitee, the possessor may give the invitee an opportunity to decide intelligently whether or not to accept the invitation or permission[v]. However, the duty imposed on a possessor of premises is to warn of the dangerous condition or to make the premises safe and not to make them safe by erecting a barrier[vi]. It is to be noted that there is no duty to warn an invitee against patent or obvious conditions which are not dangerous per se[vii].
It is to be noted that although there is no obligation to warn of a fully obvious condition, the possessor still may have a duty to protect an invitee against foreseeable dangerous conditions. Thus, the open and obvious doctrine does not relieve an invitor of his/her general duty of reasonable care[viii]. In other words, an invitee who is aware of a dangerous condition cannot impose liability on the possessor of property[ix].
However, an occupant of a premise is not an insurer of the safety of an invitee. An invitee is not protected against all hazards nor relieved of all duty to care for his/her own safety. The duty of an occupant to protect is reduced to the extent that a duty of self protection rests on the invitee. The occupant has no duty to protect an invitee against dangers known to the invitee or which are so obvious that it is reasonable to expect s/he will discover them and protect himself/herself[x]. Moreover, if an owner and the invitee are equally aware of the dangerous condition and the invitee voluntarily exposes himself/herself to the hazard, then the owner will not be liable[xi]. An owner or occupant of private premises incurs no liability for minor imperfections which are commonly encountered and which are not unreasonably dangerous[xii].
However, the duty to keep premises safe for invitees applies to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls that are not known to an invitee, and would not be observed by him/her in the exercise of ordinary care. A possessor does not have any duty to reconstruct or alter the premises so as to obviate known and obvious dangers[xiii].
[i] Scheibel v. Lipton, 156 Ohio St. 308 (Ohio 1951).
[ii] Zaia v. “Italia” Societa Anonyma di Navigazione, 324 Mass. 547 (Mass. 1949).
[iii] Argo v. Goodstein, 438 Pa. 468 (Pa. 1970).
[iv] Modzelewski V. Sears Roebuck & Co., 1998 Mich. App. Lexis 2181 (Mich. Ct. App. Feb. 3, 1998).
[v] Dalton v. Steiden Stores, Inc., 277 Ky. 179 (Ky. 1939).
[vi] Harbourn v. Katz Drug Co., 318 S.W.2d 226 (Mo. 1958).
[vii] Miami Coin-O-Wash, Inc. v. McGough, 195 So. 2d 227 (Fla. Dist. Ct. App. 3d Dist. 1967)
[viii].Modzelewski V. Sears Roebuck & Co., 1998 Mich. App. Lexis 2181 (Mich. Ct. App. Feb. 3, 1998).
[ix] Harbourn v. Katz Drug Co., 318 S.W.2d 226 (Mo. 1958).
[x] Blair v. Ohio Dep’t of Rehabilitation & Correction, 61 Ohio Misc. 2d 649 (Ohio Ct. Cl. 1989).
[xii] Helms v. American Legion, 5 Ohio St. 2d 60 (Ohio 1966).
[xiii] Harbourn v. Katz Drug Co., 318 S.W.2d 226 (Mo. 1958).