Whelan v. Van Natta

382 S.W.2d 205 (Ky. 1964)



If an invitee goes outside of the area of his invitation, he becomes a trespasser or a licensee, depending upon whether he goes there without the consent of the possessor, or with such consent. Thus one who goes into a shop which occupies part of a building, the rest of which is used as the possessor's residence, is a trespasser if he goes into the residential part of the premises without the shopkeeper's consent; but he is a licensee if the shopkeeper permits him to go to the bathroom, or invites him to pay a social call. 


After paying for his purchase at appellee's grocery store, appellant asked if appellee had any spare boxes. Appellee directed him to a back room, which appellant found to be dark. While looking for a box, appellant fell down a stair well he had not seen. Appellant sued for his resulting injuries. The trial court found for appellee, holding appellant was a licensee, not an invitee, at the time of the accident, and thus appellee had no duty to warn appellant of the dangerous condition in the back room.


Did the status of the Plaintiff change from invitee to licensee after he went into the storage room to obtain a box?




The Court held that Appellant ceased being an invitee in appellee's store when the particular business purpose of the invitation, shopping, ended, and became a licensee when he proceeded to the back room with permission. In addition, appellant was contributorily negligent in continuing to look for the box when he realized he could not see well in the room.

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