Washington Case Law Update: When is a Visitor Deemed to be a Business Invitee?

When is a Visitor Deemed to be a Business Invitee?
From the Desk of Smith Freed Eberhard: In Washington, a possessor of land owes a duty of care to visitors (known as “entrants”).  The duty of care differs depending on the status of the entrant.  The entrant is classified as either an invitee, licensee or trespasser, and the highest duty of care is owed to an invitee.  If the entrant’s visit was primarily for social reasons yet the entrant provided an incidental economic benefit to the possessor, will the entrant be classified as an invitee?  Read on to find out.
Claims Pointer: In this case arising out of a plaintiff who was injured after falling over a step at the defendant’s house, the Washington Court of Appeals held that because the primary reason for the plaintiff’s visit was social, the plaintiff was considered to be a licensee at the time of the incident.  The court further held that because the plaintiff was aware of the dangerous condition before being injured, the plaintiff was barred from recovering under his premises liability claim against the defendants.
Akin v. Mckelvey, No. 75725-3-I, Washington Court of Appeals Div. I (February 5, 2018) (unpublished)
On December 21, 2014, Shawna Akin (“Akin”) went to the home of Julie McKelvey (“Julie”) and Michael McKelvey (collectively “the McKelveys”), in order to visit Julie who was recovering from a recent surgery.  Akin worked as an aesthetician, and Julie had been Akin’s client for the past seven years.  After the visit was planned, Akin offered to bring Julie “scar cream.”  According to Akin’s testimony, when she arrived at the home she noticed a single step concrete landing in front of the gate and sensed that the step did not look to be safe.  Akin stayed at the McKelveys’ home for about 30 minutes, where she met family members, drank tea, and toured the home.  Akin also gave Julie the scar cream, and Julie paid Akin.  When Akin was leaving, she stepped backwards through the gate, fell off the step, and landed on her wrist and back.  Akin brought suit against the McKelveys for injuries she suffered as a result of the fall. The trial court dismissed the claim, and Akin appealed.
On appeal, the Washington Court of Appeals considered whether Akin had a viable premises liability claim for negligence against the McKelveys.  The court first considered whether Akin’s status was that of a “trespasser, licensee or invitee,” as the classification would determine the specific duty of care the McKelveys owed to Akin.  Afterwards, the court considered whether the McKelveys breached their duty of care to Akin.
In determining Akin’s status at the time of the fall, the court provided an overview of the different classifications of entrants.  The court noted that an invitee could either be a public invitee or business invitee.  A business invitee is one 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.”  A common example of a business invitee is a customer at a grocery store, who is there for the possessor’s economic interest.  In contrast, a licensee is someone who is “privileged to enter or remain on long only by virtue of possessor’s consent.”  Licensees include members of the possessor’s household, social guests, and entrants who are permitted to come onto the land solely for their own purpose.
Akin argued that her status was that of a business invitee because “she entered the property in her capacity as an aesthetician.”  Akin pointed out that she provided an economic benefit to Julie by delivering the scar cream to her home so that Julie was spared from having to travel to purchase the cream.
The court disagreed with Akin and explained that a “simple bestowing of some economic benefit on the possessor of the land” is insufficient to classify the entrant as a business invitee.  The court stated that an entrant is not classified as a business invitee if “the benefit is merely incidental to an entry that is primarily familial or social.”  There is no dispute that Akin delivered a container of scar cream during her visit and no dispute that Julie was Akin’s client.  However, Akin’s visit was primarily social.  Akin had testified that she liked Julie, and visited Julie “as a good deed.”  In fact, in Akin’s testimony on her decision to visit Julie, she stated: “I woke up that morning and said why don’t I do something nice for somebody today.”  Further text message correspondence showed that Akin offered to bring along the scar cream only after Akin scheduled to visit Julie. (emphasis added).  Lastly, during her 30-minute stay, Akin met Julie’s husband, drank tea, and toured the home.  According to the court, it was clear that Akin was a licensee and not an invitee.
The court then considered that duty owed to licensees, to determine whether the McKelveys breached their duty of care to Akin.  The court relied on the standard set out in the Restatement (Second) of Torts § 342, which provided that a possessor is liable for physical harm caused by a “condition on the land” if:

(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and
(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and
(c) the licensees do not know or have reason to know of the condition and the risk involved.

(emphasis added).  The court explained that the duty of care however does not require the possessor of land to “either prepare a safe place, or . . .  affirmatively seek out and discover hidden dangers.”  With the legal framework in mind, the court turned to the case at hand, and noted that Akin failed to provide any evidence showing that the McKelveys knew or had reason to know that the step by the gate was a dangerous condition.  In addition, Akin herself had testified that “she noticed that the top step was a dangerous condition.”  Because Akin knew about the dangerous condition before the fall, the court held that Akin was barred from recovery, and upheld the trial court’s decision.
NOTE: This opinion has not been published.  It is provided to demonstrate how the court approaches the issues involved in the case.  It cannot be cited as authority to a court of law.
View full opinion at: https://www.courts.wa.gov/opinions/pdf/D2%2047777-7-II%20Published%20Opinion.pdf
Case updates are intended to inform our clients and others about legal matters of current interest. They are not intended as legal advice. Readers should not act upon the information contained in this article without seeking professional counsel.
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