When a person enters another person’s store as a result of an express or implied invitation by the latter for their mutual benefit, then the former person is treated as an invitee. A store has the following duties towards his/her customer[i]:
- Keep the aisles and passageways of its store in a reasonably safe condition so that it does not expose customers unnecessarily to danger;
- To give warning of hidden dangers and unsafe conditions of which it knows;
- Inspect the premises to discover possible dangerous conditions of which the owner/occupier does not have actual knowledge;
- Take reasonable precautions to protect invitees from dangers foreseeable from the arrangement or use of the premises.
However, there is no duty to warn against obvious or patent dangers which may be observed and avoided by the exercise of ordinary care[ii]. However, this duty of ordinary care extends only to parts of the store reserved for customers and not to places where customers are not invited[iii].
It is to be noted that if a proprietor invites children upon the premises, s/he has a duty to keep his/her property reasonably safe so far as they are concerned. The known characteristics of children, including their childish propensities to intermeddle, must be taken into consideration while determining whether ordinary care for the safety of a child has been exercised under particular circumstances[iv]. While the standard is the same, more precautions and safeguards may be required to sustain the burden of due care[v].
A person who goes to a shopping mall is a business invitee whether or not the person makes a purchase. A business invitee is not required to make a purchase. A mere possibility that s/he will make a purchase in the future is sufficient to confer the status of business invitee[vi]. In the absence of evidence that a person knowingly entered as a trespasser, there can be no trespass unless the possessor revoked the status of business invitee[vii].
Similarly, a workman of a buyer who is sent to a seller’s premises to remove what is sold is considered a business invitee of the seller who had a duty to keep his/her premises reasonably safe for the workman and to warn the workman of any failure to keep the premises safe. The workman is entitled to rely on the seller’s performance of such duty[viii].
It is to be noted that the general test in determining whether one is an invitee or a licensee is whether the injured person, at the time of an injury, has business relations with the owner of the premises. In the absence of some relation which inures to the mutual benefit of the two, or to that of the owner, no invitation can be implied, and the injured person must be regarded as a mere licensee[ix]. A landowner is liable for injuries to business invitees and licensees, such as invited salespersons and letter carriers, for injuries caused by latent or concealed perils that are known or should be known to the landowner[x].
Generally, the duty of a defendant to a plaintiff as an invitee varies depending upon whether the defendant is the owner or merely a sales agent. If defendant is the owner, s/he will be obliged to keep and maintain the property in a reasonably safe state of repair. If defendant is a sales agent, s/he will be under no duty to keep the property in repair in the absence of a contract. However, if the defendant is in complete control and charge of the property as a managing agent and it is his/her contractual duty to the owner to keep the premises in repair, s/he will be liable for failure to do so[xi].
It was observed in Brody v. Westmoor Beach & Blade Club, Inc., 524 P.2d 1087 (Colo. Ct. App. 1974) that a swimming pool operator is not an insurer of his/her guest’s safety, and a participant in a sports activity such as swimming is deemed to accept the dangers involved insofar as such are obvious. In certain jurisdictions, no owner, lessee or occupant of premises owes any duty to keep the premises safe for entry or use by others for cutting or gathering of wood for non commercial purposes or to give warning of any hazardous condition or use of or structure or activity on such premises to persons entering for such purposes[xii].
[i] Murray v. Fitzgerald Convenient Ctrs., 239 Ga. App. 799 (Ga. Ct. App. 1999).
[ii] Rozy Invs., Inc. v. Bristow, 276 Ga. App. 278 (Ga. Ct. App. 2005).
[iii] Houston v. Safeway Stores, 346 Md. 503 (Md. 1997).
[iv] Orr v. First Nat’l Stores, Inc., 280 A.2d 785 (Me. 1971).
[v] Schroeder v. Donlin, 79 S.D. 331 (S.D. 1961).
[vi] State v. Mention, 12 Conn. App. 258 (Conn. App. Ct. 1987).
[viii] Reynolds v. American Oil Co., 32 Ill. App. 3d 905 (Ill. App. Ct. 1st Dist. 1975).
[ix] Jerrell v. Whitehurst, 164 So. 2d 875 (Fla. Dist. Ct. App. 1st Dist. 1964.
[x] Rosseau v. Fintz, 711 So. 2d 1352 (Fla. Dist. Ct. App. 3d Dist. 1998).
[xi] Christopher v. McGuire, 179 Ore. 116 (Or. 1946).
[xii] Schoonmaker v. Ridge Runners Club 99, Inc., 119 A.D.2d 858 (N.Y. App. Div. 3d Dep’t 1986).