Invitee

A person invited, implicitly or explicitly, upon the real property of another.

A person invited on the real property of another and who is at that place; the person so inviting being the invitor.

An essential term in the law of occupiers' liability (aka premises liability) as these types of person either benefit from common law protection from harm done to them by hazards or defects of the real property, or from statute regimes of occupiers' liability.

At common law, jurists generally defer to the definition of the English Court in Fairman v. Perpetual Investment Building Society:

"... an invitee, meaning persons invited to the premises by the owner or occupier for purposes of business or of material interest."

In Pearson v Lambeth Borough Council adopted these words from Salmon's Law of Tort (10th Edition):

"The invitor says 'I ask you to enter upon my business'.

"The licensor says 'I permit you to enter on your own business.'

"... It is more exact to say that an invitee is a person who comes on the occupier's premises with his consent on business in which the occupier and he have a common interest; e.g., a shopper has an interest to buy and a shopkeeper an interest to sell.

"It is sometimes said that this interest must be pecuniary or at least material."

Oddly, a person invited to a social event such as a friend invited over for dinner, is not an invitee but, rather, is a licensee.

In the American treatise ATLA Litigating Tort Cases:

"Judicial determination as to when a person qualifies as an invitee is based on two tests: the economic benefit test (or business visitor) test; and the public invitee (or invitation) test.

"Pursuant to the economic benefit test, an invitee is an individual who is invited onto the possessor's land for a purpose directly or indirectly connected with the possessor business dealings, such as to make a purchase or eat in a restaurant.

"A person is considered to be a public invitee under the second test if he or she is invited to enter or remain on land as a member of the public, and if the invitation is for a purpose for which the land is open to the public. No economic interest is required for the second test."

As for the standard of care owed to an invitee, lawyers often turn to the statement in London Graving Dock v Horton:

".. the duty is not to prevent damage but to use reasonable care to prevent it and it has to be determined what is reasonable care. Even if there is unusual danger, the duty to use reasonable care to prevent damage may be performed by notice, lighting or guarding, and the recognition that the invitor may fulfill the obligations imposed on him by notice or lighting indicates that adequate warning to the invitee may be in compliance with the duty which is owed by the invitor."

Dobbs' book provides an excellent summary:

"The landowner owes to the invitee a duty of care to make conditions on the land reasonably safe and to conduct his active operations with reasonable care for the invitee whose presence is known or is reasonably forseable.

"In some cases but not in all, reasonable care under the circumstances requires an inspection of the premises and active steps to make them safe.

"In other cases, the landowner may satisfy his duty of reasonable care by providing a warning."

Because, historically, the common law was used mostly to defeat landowner liability, many jurisdictions have modified the above-described principles of the common law by enacting statutes which, in whole or in part, define what an invitee is, as well as the invitor's standard of care. For example, consider this edited extract from the relevant Ontario legislation:

"... this Act applies in place of the rules of the common law that determine the care that the occupier of premises at common law is required to show for the purpose of determining the occupier’s liability in law in respect of dangers to persons entering on the premises or the property brought on the premises by those persons.

"An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises."

REFERENCES:

• Conlin, R., and Cusimano, G., ATLA's Litigating Tort Cases (Thomson-West Group, Eagan, MN., USA: 2003), §55.
• Di Castri, J. V., Occupiers' Liability (Toronto: Carswell Company Limited, 1980).
• Dobbs, D., The Law of Torts (St. Paul, Minn.: West Group, 2001), page 602-603.
• Fairman v. Perpetual Investment Building Society 1923 Appeal Cases 74
• London Graving Dock Co. Ltd. v Horton 1951 AC 737.
• Occupiers' Liability Act 1990 Revised Statutes of Ontario Chapter O-2.
• Pearson v Lambeth Borough Council 2 KB 353 (1950)