Whelan v. Van Natta

Kentucky Court of Appeals · 1964 · Torts

382 S.W.2d 205 (1964)

Updated July 23, 2026

TortsPremises LiabilityInvitee and LicenseeContributory Negligenceinviteelicenseescope of invitationconsent

Facts

Whelan entered Van Natta's grocery to buy cigarettes, made his purchase, and then asked for a box for his son. Van Natta, who was busy behind the counter, told him, "Go back in the back room. You will find some back there." Whelan entered the dark storage room, did not turn on or look for a light, saw a box after his eyes adjusted, and then walked twelve or fifteen feet farther toward a window and fell into an unseen open stair well. The stair well extended into a corridor beyond a large walk-in refrigerator, and Van Natta had not warned Whelan of it.

Issue

Did Whelan remain an invitee when he went into the storage room to get a box after completing his purchase, or did his status change to that of a licensee? If he was not entitled to recover as an invitee, was he also barred because he was contributorily negligent in proceeding through the dark room without using available light?

Rule

A possessor of land is liable to an invitee only for harm sustained while the visitor is on the land within the scope of the invitation. A visitor has invitee status only while on the part of the land to which the invitation extends; if he goes outside that area with the possessor's consent, he becomes a licensee, and if without consent, a trespasser. In addition, one who enters darkness realizing his difficulty in seeing, and who does not use available light or look where he is going, assumes the risk of unseen hazards and is contributorily negligent.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Nina Patel stopped at Harbor Lane Books in Columbus, Ohio, to buy a notebook. After paying, she asked the cashier whether the store had any discarded packing paper for a school project, and the cashier said, "You can check the stock room in back if you want." Nina entered the back room, an area customers did not ordinarily use, and was injured by an unguarded hazard there.

What is Nina's status at the time of injury under the governing rule?

Explanation. An entrant is an invitee only while on the part of the land to which the invitation extends and for the purpose for which the possessor desires the entrant's presence. Once Nina finished her purchase and went into a back room not ordinarily held open to customers, she moved beyond the scope of the invitation. Because she went there with consent, she became a licensee, not a trespasser.