Duties to Delivery Persons on Your Retail/Hospitality-Related Premises – A South Carolina Review

The homeowner moved for summary judgment asserting, inter alia, the plaintiff was a licensee and, consequently, because the danger presented by the slippery steps “was open and obvious,” the homeowner owed him no duty either to correct that condition or to warn him of that condition.

The Johnson Court ultimately decided the plaintiff delivery driver was a “licensee,” holding the driver’s presence was for the benefit of the homeowner, which made him a “business visitor.” A “business visitor” is one of the classifications of an “invitee” under the prevailing common law.

Johnson is an important decision inasmuch as it holds a vendor or other third party delivery drivers entering a property enjoys the same status and duties of care as do persons such as guests or customers. Accordingly, retail and hospitality entities should take the necessary steps to ensure their properties free of latent or hidden dangers of which the entity has knowledge or should have knowledge. Because vendors and other third party delivery drivers often venture into areas such as storerooms and kitchens, the duty of care owed to them arguably extends into these areas. We all know that non-public places on properties are sometimes not organized and maintained in the same manner as those areas open to guests; therefore, landowners may need to expend extra effort to organize and maintain their non-public areas in the interest of protecting the safety of their visiting vendors and other third party delivery drivers.

Ordinarily, we don’t advise retailers and hospitality-related entities doing business in South Carolina on decisions emanating from the Oregon Court of Appeals. However, we do so in this case because we note the Johnson Court’s holding was based in part upon the decision of the South Carolina Court of Appeals in Sims v. Giles, 343 S.C. 708, 541 S.E.2d 857 (Ct. App. 2001). For this reason, we imagine that if a Johnson-like dispute arose in South Carolina, the result may very well be the same in the Palmetto State as it was in Oregon.

In Sims, at issue was the status of a meter reader entering a utility customer’s property and the concordant standard of care owed by the landlord to the meter reader. The Sims Court held a meter reader is an “invitee,” rather than “licensee,” for purposes of determining applicable standard of care.

In addition to this case being novel for South Carolina, what makes Sims important is the extended and careful analysis Judge Anderson employed to arrive at the ultimate disposition:

South Carolina recognizes four general classifications of persons who come on premises: adult trespassers, invitees, licensees, and children. Different standards of care apply depending on whether the visitor is considered an “invitee,” i.e., an invited (express or implied) business guest; a “licensee,” i.e., a person not invited, but whose presence is suffered; a “trespasser,” i.e., a person whose presence is neither invited nor suffered; or a child. See Joseph F. Singleton, Liability of Owner or Possessor of Land, 21 S.C. L.Rev. 291 (1969). See also Larimore v. Carolina Power & Light, 340 S.C. 438, 444, 531 S.E.2d 535, 538 (Ct.App.2000)(“The level of care owed is dependent upon the class of the person present.”).

In premises liability cases, the invitee is offered the utmost duty of care by the landowner and a trespasser is generally offered the least. Since meter readers enter premises with some form of acquiescence or permission arising through the landowner’s contract with SCE & G, they are not trespassers. See Smiley v. Southern R.R., 184 S.C. 130, 191 S.E. 895 (1937)(if owner or possessor consents or acquiesces in constant trespasses, an implicit invitation requiring such care as is individually owed to a licensee may be found); Snow v. City of Columbia, 305 S.C. 544, 552, 409S.E.2d 797, 802 (Ct. App. 1991) (“The unwarrantable entry on land in the peaceable possession of another is a trespass…. The entry itself is the wrong. Thus, for example, if one without license from the person in possession of land walks upon it, … he commits a trespass by the very act of breaking the enclosure.”) (citationomitted). In fact, the contention that a meter reader is not specifically invited onto the premises and is thus a trespasser has been rejected. See 62 Am.Jur.2d Premises Liability § 453 (1990). Sims is not a child; therefore, the only issue presented, which is novel in South Carolina, is whether Sims, in her capacity as a SCE & G meter reader, should be considered an invitee or a licensee.

B. Invitees

“An invitee is a person who enters onto the property of another at the express or implied invitation of the property owner.” Goode v. St. Stephens United Methodist Church, 329 S.C. 433, 441, 494 S.E.2d 827, 831 (Ct. App. 1997). “Invitees are limited to those persons who enter or remain on land upon an invitation which carries with it an implied representation, assurance, or understanding that reasonable care has been used to prepare the premises, and make them safe for their reception.” Restatement (Second) of Torts § 332 cmt. a (1965). The visitor is considered an invitee especially when he is upon a matter of mutual interest or advantage to the property owner. Parker v. Stevenson Oil Co., 245 S.C. 275, 140 S.E.2d 177 (1965); Landry v. Hilton Head Plantation Prop. Owners Ass’n, Inc., 317 S.C. 200, 452 S.E.2d
619 (Ct. App. 1994).

“Phrased somewhat differently, it may be said that a person is an invitee on the land of another if he enters by express or implied invitation, his entry is connected with the owner’s business or with an activity the owner conducts or permits to be conducted on his land, and there is a mutuality of benefit or *717 a benefit to the owner.” 62 Am.Jur.2d Premises Liability § 87 (1990). See also Larimore, 340 S.C. at 444, 531 S.E.2d at 538 (“Because Larimore, [who was hired by the property owner to add vinyl siding to his home,] was a business visitor invited to enter or remain on the property for a purpose directly or indirectly connected with [the property owner], Larimore was an invitee.”).

“Invitees include patrons of stores, patients in a physician’s office, persons visiting a filling station to use the restroom or vending machine or to ask directions, and workmen invited to work on the premises.” F.P. Hubbard & R.L. Felix, The South Carolina Law of Torts 112-13 (2d ed.1997)(footnotes omitted).

The law recognizes two types of invitees: the public invitee and the business visitor.“ A public invitee is one who is invited to enter or remain on the land as a member of the public for a purpose for which the land is held open to the public.” Goode, 329 S.C. at 441, 494 S.E.2d at 831; Restatement (Second) of Torts § 332(2) (1965). See also Creech v. South Carolina Wildlife and Marine Res. Dep’t, 328 S.C. 24, 491 S.E.2d 571 (1997)(discussing the duty owed a public invitee who was injured when she fell off a public dock; landowner may be liable for an injury arising from an “open and obvious” danger if the landowner should have anticipated the harm that occurred).

A business visitor, on the other hand, is an invitee whose purpose for being on the property is directly or indirectly connected with business dealings with the owner. Goode, 329 S.C. at 441, 494 S.E.2d at 831. See also Parker, 245 S.C. at 280, 140 S.E.2d at 179 (the term “invitee” in premises liability cases usually means the same thing as a business visitor and refers to one who enters upon the premises of another at the express or implied invitation of the occupant, especially when he is there about a matter of mutual interest or advantage); Hoover v. Broome, 324 S.C. 531, 535, 479 S.E.2d 62, 65 (Ct. App. 1996)(“Business visitors are considered invitees as long as their purpose for entering the property is either directly or indirectly connected with the purpose for which the property owner uses the land.”); Restatement (Second) of Torts § 332(3) (1965)(“A business visitor 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.”). However, “[t]he class of persons qualifying as business visitors is not limited to those coming upon the land for a purpose directly or indirectly connected with the business conducted thereon by the possessor, but includes as well those coming upon the land for a purpose connected with their own business, which itself is directly or indirectly connected with a purpose for which the possessor uses the land.” 62 Am.Jur.2d Premises Liability § 88 (1990)(emphasis added).

The business visitor is generally divided into two classes. The first class of business visitor “includes persons who are invited to come upon the land for a purpose connected with the business for which the land is held open to the public, as where a person enters a shop to make a purchase, or to look at goods on display.” Restatement (Second) of Torts § 332 cmt. e (1965). “The second class includes those who come upon land not open to the public, for a purpose connected with business which the possessor conducts upon the land, or for a purpose connected with their own business which is connected with any purpose, business or otherwise, for which the possessor uses the land.” Id. “Thus a truck driver from a provision store who enters to deliver goods to a private residence is a business visitor; and so is a workman who comes to make alterations or repairs on land used for residence purposes.” Id.

The owner of property owes to an invitee or business visitor the duty of exercising reasonable or ordinary care for his safety, and is liable for injuries resulting from the breach of such duty. Larimore v. Carolina Power & Light, 340 S.C. 438, 531 S.E.2d 535 (Ct.App.2000). The landowner has a duty to warn an invitee only of latent or hidden dangers of which the landowner has knowledge or should have knowledge. Callander v. Charleston Doughnut Corp., 305 S.C. 123, 406 S.E.2d 361 (1991). The degree of care required is commensurate with the particular circumstances involved,including the age and capacity of the invitee. Henderson v. St. Francis Cmty. Hosp., 303 S.C. 177, 399 S.E.2d 767 (1990).

In addressing this issue, our Supreme Court specifically adopted the Restatement (Second) of Torts § 343A (1965) in Callander v. Charleston Doughnut Corp., 305 S.C. at 126, 406 S.E.2d at 362.

Section 343A provides:

§ 343A. Known or Obvious Dangers

(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.(2) In determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to make use of public land, or of the facilities of a public utility, is a factor of importance indicating that the harm should be anticipated.

This duty is an active or affirmative duty. Hughes v. Children’s Clinic, P.A., 269 S.C. 389, 237 S.E.2d 753 (1977); Garvin v. Bi-Lo, Inc., 337 S.C. 436, 523 S.E.2d 481 (Ct.App.1999), cert. granted, March 21, 2000. It includes refraining from any act which may make the invitee’s use of the premises dangerous or result in injury to him. Hughes, 269 S.C. at 397, 237 S.E.2d at 756; Garvin, 337 S.C. at 444, 523 S.E.2d at 485. It is not necessary that the precise manner in which the injuries were sustained be foreseeable. Hughes, 269 S.C. at 397, 237 S.E.2d at 757; Orr v. First Nat’l Stores, Inc., 280 A.2d 785 (Me.1971). Rather, “[i]t is sufficient that there is a reasonable generalized gamut of greater than ordinary dangers of injury and that the sustaining of the injury was within this range…. It was, therefore, a jury question whether the defendant had provided reasonably safe premises … for the use of the … invitee.” Hughes, 269 S.C. at 397-98, 237 S.E.2d at 757 (quoting Orr, 280 A.2d at 794).

C. Licensees

A licensee is a person who is privileged to enter or remain upon land by virtue of the possessor’s consent. Neil v. Byrum, 288 S.C. 472, 343 S.E.2d 615 (1986); Restatement (Second) of Torts § 330 (1965). Cf. Bryant v. City of North Charleston,304 S.C. 123, 403 S.E.2d 159 (Ct.App.1991)(since Neil defines standard of care owed licensee, not public invitee, there was no error by trial judge not to charge Neil to jury where 80-year old woman tripped and fell over barricade placed over depression on public sidewalk). When a licensee enters onto the property of another, the primary benefit is to the licensee, not the property owner. Hoover v. Broome, 324 S.C. 531, 479 S.E.2d 62 (Ct.App.1996); Landry v. Hilton Head Plantation Prop. Owner’s Ass’n, Inc., 317 S.C. 200, 452 S.E.2d 619 (Ct.App.1994). A licensee is a person whose presence is tolerated, a person not necessarily invited on the premises, but one who is privileged to enter or remain on the premises only by the property owner’s express or implied consent. Frankel v. Kurtz, 239 F.Supp. 713 (W.D.S.C.1965).

The most common example of a licensee is the social guest. See F.P. Hubbard & R.L. Felix, The South Carolina Law of Torts 111 (2d ed.1997). See also Frankel, 239 F.Supp. at 717 (“A social guest is a licensee”; as such, he enters the premises by virtue of the possessor’s consent). “An injured person has been held to be a licensee where he entered premises to seek a favor, to make inquiries or ask directions, to do volunteer work, to use recreational facilities without asking specific permission, to recover an item of personal property left on the premises, to obtain some article of value given to the licensee by the occupant, or while chasing his dog.” 62 Am.Jur.2d Premises Liability § 111 (1990)(footnotes omitted).

In Neil v. Byrum, our Supreme Court explained:

The possessor is under no obligation to exercise care to make the premises safe for his reception, and is under no duty toward him except:

(a) To use reasonable care to discover him and avoid injury to him in carrying on activities upon the land.

(b) To use reasonable care to warn him of any concealed dangerous conditions or activities which are known to the possessor, or of any change in the condition of the premises which may be dangerous to him, and which he may reasonably be expected to discover.

Neil, 288 S.C. at 473, 343 S.E.2d at 616 (emphasis in original) (quoting Frankel, 239 F.Supp. at 717).

Therefore, “[s]ince a licensee is there for his own benefit, he can be said to accept the premises as they are and demand no greater safety than his host provides himself.” Hubbard & Felix, supra, at 111 (emphasis in original).

Id. at 715-721, 541 S.E.2d at 861-64.