Location, Location, Location: The More Complicated Side of Premises Liability Law

Posted on by Jonathan Nelson in Litigation.

It is well established in Maryland premises liability matters that “the duty of care an owner or occupier of land owes a visitor varies, depending on whether the entrant is an invitee, licensee, or trespasser.”  Deboy v. City of Crisfield, 167 Md. App. 548, 555 (2006).  “The highest duty is that owed to an invitee; it is the duty to ‘use reasonable and ordinary care to keep [the] premises safe for the invitee and to protect [the invitee] from injury caused by an unreasonable risk which the invitee, by exercising ordinary care for [the invitee’s] own safety will not discover.’”  Id. (quoting Rowley v. Mayor, 305 Md. 456, 465 (1986)).  “An invitee is in general a person invited or permitted to enter or remain on another’s property for purposes connected with or related to the owner’s business.”  Sherman v. Suburban Trust Co., 282 Md. 238, 242 (1978).  “By contrast, the landowner or occupier owes no duty to licensees or trespassers, except to abstain from willful or wanton misconduct or entrapment.”  Deboy, 167 Md. App. at 555.   “A licensee is generally defined as one who enters the property with the knowledge and consent of the owner but for his own purposes or interest.”  Sherman, 282 Md. at 242.

In analyzing whether a visitor is considered an invitee to property versus where a visitor is considered a licensee, it is easy to overlook the fact that such analysis can be fluid.  In other words, during the course of one visit, an individual can be considered an invitee and a licensee.  It is an established principle of law that “[o]ne may be an invitee or business visitor as to one portion of the premises, or for a limited time, and be a licensee or trespasser as to another portion of the same premises or, without changing location, undergo the same change in status by the lapse of time.”  Levine v. Miller, 218 Md. 74, 79 (1958).  “Maryland cases are in agreement as to the general principle underlying the rule as to the change of status, geographical or chronological, of one who starts as an invitee.”  Id.

For example, in Pellicot v. Keene, a child, while in a grocery store with his mother, wandered behind a display rack in search of cakes on the rack, fell through a trap door to the cellar and was injured.  Pellicot v. Keene, 181 Md. 135, 136 (1942).  The Court of Appeals held that while the child (as was his mother) was an invitee in the store generally and originally, the child lost his invitee status when we wandered behind the counter.  Id. at 139.  The Court of Appeals noted that the grocery store was not self-service, nor did the child have an express or implied invitation behind the counter.  Id.  The storekeeper had a “duty to use reasonable care to keep safe that part of the store reserved for customers, but that part of the store behind counters, to which customers were not invited, he owed no such duty.”  Id.  “[W]here there is no custom permitting customers behind counters, as in this case, those who wander behind counters, whether adults or infants, are not invitees and at best are mere licensees to whom the storekeeper owes no duty for their protection.”  Id.

In Gordon Sleeprite Corporation v. Waters, plaintiff, Waters, went to the office of defendant for the purpose of and in the course of his work as a bill collector.  Gordon Sleeprite Corporation v. Waters, 165 Md. 354, 168 A. 846, 846-847 (1933).  Mr. Waters, after finding no one in defendant’s office, and after waiting five minutes, proceeded to leave the office, walk across the yard and head toward defendant’s factory.  Id. at 846.  Mr. Waters intended to holler up the elevator shaft in the factory to get someone’s attention.  Id.  Prior to doing so, Mr. Waters fell down the elevator shaft because the gate most proximate to him was up, leaving the elevator shaft unprotected.  Id.  The Court of Appeals held that while Mr. Waters was an invitee in defendant’s office, because that was the “part of the premises where his business properly took him,” Mr. Waters exceeded the scope of his invitation, and was no longer an invitee, when he traveled to a part of the premises where he was not reasonably expected to go (the factory).  Id. at 848.  “In determining the area included within the invitation, the purpose for which the land is held open, or the particular business purpose for which the invitation is extended, is of great importance.”  Restatement (Second) of Torts § 332 cmt. l (1965).  Moreover:

The mere fact that the possessor knows that invitees in general, or a particular invitee, will be likely to go into parts of the premises to which he is not invited, is not enough in itself to bring such places within the area of invitation, unless the visitor is reasonably led to believe that he is so invited.

Id.

The basis on which negligence claims arise is the existence of a duty of one party to another.  Premises liability actions are no exception.  In protecting your interests, it is essential to know and understand the duty you owe to others.  It is equally as important to appreciate that identifying said duty can be more complicated than one might assume.  Each factual circumstance is different and navigating the labyrinthine intricacies of tort law is accomplished best by those who have been in the maze before and have seen the way out.