§4.5 - The Status of the Entrant as Invitee, Licensee, or Trespasser

• Jurisdiction: Washington

§4.5 THE STATUS OF THE ENTRANT AS INVITEE, LICENSEE, OR TRESPASSER

Although determining who is or is not a "possessor" of land determines "who" owes the duty, the cornerstone of premises liability law is the status of the entrant. Invitee, licensee, trespasser—fitting the entrant into the appropriate category is the first, and often determinative, step of the premises liability analysis. Simply stated, the entrant's status determines the degree and scope of the duty of care owed. The following sections will discuss the case law defining each category and some of the various rules and exceptions applicable to each class of entrant.

(1) Invitee

Of all entrants upon land, the invitee is accorded the greatest degree of care and protection. The possessor ordinarily desires the presence of the invitee upon the property and, accordingly, must affirmatively act to ensure the invitee's safety while upon the land. Consequently, premises liability law prescribes greater duties to ensure the safety of the invitee.

Under both the old and the modern standards, the classic "business visitor," such as a person entering a business establishment (e.g., grocery, restaurant, bank, tavern, general merchandise store, theater) to do business with its proprietor is an easy enough case. However, prior to 1966, other "invited" entrants upon the land who were not there on business but nevertheless were deserving of greater protection were excluded from the shelter of invitee status. Moreover, the distinction between invitees and licensees or trespassers was crucial for another reason: prior to 1975, a possessor of land owed a duty only to avoid willfully or wantonly injuring a licensee or trespasser. Not surprisingly, these rules often proved too narrow in application and harsh in result. As discussed in §4.5(1)(a), below, the Washington courts in 1966 adopted the broader Restatement (Second) of Torts definition of "invitee" that included "public" as well as "business" invitees, and in 1975 imposed a greater duty of care with respect to licensees. See §4.5(2)(b), below.

(a) Determination of status as an invitee

Earlier cases defined an invitee primarily in terms of "economic benefit" and the owners' and entrants' mutual interest in the subject of the visit:

An invitee is one who is either expressly or impliedly invited onto the premises of another for some purpose connected with the business in which the owner or occupant is then engaged, or which he permits to be conducted thereon; there must be some real or supposed mutuality of interest in the subject to which the visitor's business or purpose relates.

Garner v. P. Coast Coal Co., 3 Wn.2d 143, 148, 100 P.2d 32 (1940).

The test for implied invitation was the mutuality of interest in the subject to which the visitor's business or purpose related. Christensen v. Weyerhaeuser Timber Co., 16 Wn.2d 424, 133 P.2d 797 (1943). The relatively narrow application of the rule and the disparate level of protection afforded to "invitees" as compared to "licensees" or "trespassers" often led courts to stretch the definitions to find invitee status.

For example, in Heckman v. Sisters of Charity, 5 Wn.2d 699, 106 P.2d 593 (1940), a charitable hospital held a "capping ceremony" to honor student nurses, and the nurses were permitted to invite friends and relatives to witness the ceremony. Faced with a sympathetic injured plaintiff, the court held that the persons so invited were invitees.

An even earlier case, Hanson v. Spokane Valley Land & Water Co., 58 Wash. 6, 107 P. 863 (1910), presented perhaps the furthest extension of the theory of implied invitation in Washington. As described by a later court, the Hanson court held that

[t]he maintenance of a well-defined private road and way of necessity, connecting with a main traveled public highway, which private road was subjected to constant, daily use by the public, and which had for many years been kept open to such travel, constituted an implied invitation to the public to use it as a public way, and that a member of the public traveling over such road was an invitee, to whom the owner of the land was under the obligation to exercise reasonable care and diligence to keep it in a safe condition.

Garner, 3 Wn.2d at 148-49. The Garner court noted that the Hanson court had avoided the harsh consequence of labeling the entrant as a licensee:

It is apparent from the opinion in that case that the court felt that, under the peculiar combination of circumstances, the plaintiff should be permitted to recover. It is also apparent that the court was of the view that if the plaintiff was but a mere licensee he could not recover, because to a licensee the owner of the land owed no duty as to the condition of the premises 'except that the owner should not knowingly permit the licensee to run upon hidden dangers, or wilfully cause his harm.' The facts, there, undoubtedly presented what is often termed 'a hard case,' and in order to sustain a cause of action, the court was seemingly driven to the extremity of holding, 'under the facts alleged,' that the plaintiff was an invitee. It appears to us now that, under the peculiar facts of that case, it logically might have been held that the plaintiff, even though a mere licensee, had knowingly been permitted by the owner to run upon a concealed danger. However that may be, we do not believe that the decision is wholly consonant with our later decisions in discriminating between an invitee, on the one hand, and a licensee or a trespasser, on the other.

Garner, 3 Wn.2d at 149-50.

The old rule largely excluded from "invitee" status persons on the land not for a "business" purpose, but nevertheless with a legitimate expectation that the possessor would make the premises safe for entry. This limitation to "business" entrants eventually gave way in favor of the broader definition of invitee in the Restatement (Second) of Torts in McKinnon v. Washington Federal Savings & Loan Ass'n, 68 Wn.2d 644, 650, 414 P.2d 773 (1966):

(1) An invitee is either a public invitee or a business visitor.

(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.

(3) A business visitor is a person who is inv ited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.

Restatement (Second) of Torts §332; see Swanson v. McKain, 59 Wn.App. 303, 796 P.2d 1291 (1990), review denied, 116 Wn.2d 1007 (1991) (analyzing distinction between invitee and licensee). An invitee is now viewed as either a business invitee or a public invitee. Home v. N. Kitsap School Dist., 92 Wn.App. 709, 717, 965 P.2d 1112 (1998). A business invitee is "a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land." Beebe v. Moses, 113 Wn.App. 464, 467, 54 P.3d 188 (2002). A public invitee must enter or remain on the property "as a member of the public for a purpose for which the land is held open to the public." Home, 92 Wn.App. at 717.

Under the RESTATEMENT definition the focus shifts from a question of "economic benefit" to the reasonable expectations of the entrant; it is the belief by the entrant that the possessor intends the premises to be used by visitors—business or public—and that reasonable care was taken to make the place safe for such entrants that creates an "invitee."

The occupier, by his arrangement of the premises or other conduct, has led the entrant to believe that the premises were intended to be used by visitors, as members of the public, for the purpose which the entrant was pursuing, and that reasonable care was taken to make the place safe for those who enter for that purpose.

Younce v. Ferguson, 106 Wn.2d 658, 668, 724 P.2d 991 (1986) (quoting McKinnon, 68 Wn.2d at 649) (emphasis added). See Afoa v. Port of Seattle, 176 Wn.2d 460, 296 P.3d 800 (2013) (employee of company performing work on premises of another is a business invitee of the owner or possessor of the premises because the employee is on the premises for a purpose connected with business dealings with the owner or possessor); Fulwiler v. Archon Grp., 178 Wn. App. 1029, No. 69338-7-I, 2013 WL 6835286 (Dec. 23, 2015) (unpublished) (person who enters land incidental to business relations of the possessor and a third party is a business invitee (citing Restatement (Second) of Torts §332 cmt. g (1965)).

For example, in McKinnon, the plaintiff was found to be an invitee when a bank advertised meeting rooms available for public use and the plaintiff was part of a Girl Scout troop using the room for Scout meetings. See also Fosbre v. State, 70 Wn.2d 578, 424 P.2d 901 (1967) (holding plaintiff was invitee at recreational area that had been improved and maintained for use by National Guard families of which the plaintiff was a member).

"To decide an entrant's status, '[t]he ultimate goal is to differentiate (1) an entry made for a business or economic purpose that benefits both entrant and occupier, from (2) an entry made for a purpose that either (a) benefits only the entrant or (b) is primarily familial or social.'" Beebe v. Moses, 113 Wn.App. 464, 467-68, 54 P.3d 188 (2002) (quoting Thompson v. Katzer, 86 Wn.App. 280, 286, 936 P.2d 421, review denied, 133 Wn.2d 1020 (1997)). Even under the broader definition of invitee, the question of whether a person is an invitee or a licensee continues to arise in the cases. It is easy to see why. Because the possessor owes a higher and broader duty of care to the invitee than to the licensee or trespasser, an injured entrant will seek the status of an injured invitee.

The cases present imaginative arguments by counsel to fit their clients into the "invitee" category. For example, in Younce v. Ferguson, 106 Wn.2d 658, a young woman was injured...