A licensee is one whose presence on the property of another is tolerated or permitted but not invited.
Plaintiff sought recovery for the wrongful death of her husband, alleging that he was defendant's employee at the time he fell to his death while painting on defendant's water tower. The trial court ruled in favor of the plaintiff, and the defendant appealed
Was the decedent an employee?
The judgment in favor of plaintiff was reversed and the case remanded for a new trial because it was error for to determine that plaintiff's husband was an employee of defendant as a matter of law. The court reversed the judgment in favor of plaintiff and remanded for retrial. Applying master and servant common law to determine the relationship between the deceased and defendant, the court determined that the deceased was not an employee and it was error to rule as a matter of law that he was. The three elements of an employment relationship, an agreement to work, compensation, and establishment of control were not proven. Further, defendant's adopted proposal established a condition precedent to an employment relationship, execution of a contract by the city attorney, and that condition had not been met, resulting in the deceased not qualifying as an independent contractor. The deceased was not a trespasser, for he had implied permission to be present by defendant's employee that was present when the deceased started to work. At most, the deceased was a licensee by permission, for he was there with permission but without invitation.