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  • David Foreman

Goldilocks and the Three Barristers - Part Three


An invitee is either a member of the public or a business visitor. A public invitee is invited to enter or remain on the land for a purpose for which it is held open to the public. Updyke v. BP Oil Company, supra at 549 citing Palange v. Philadelphia Law Department, supra at 1308; Restatement (Second) of Torts § 332(2). A business visitor is invited to enter on land for a purpose connected with business dealings with the land’s possessor. Restatement (Second) of Torts § 332; Cresswell v. End, supra at 675; Updyke v. BP Oil Company, supra at 549 citing Palange v. Philadelphia Law Department, supra.

Comment b to § 332 of the Restatement discusses the distinction between invitation and permission, which is central to a determination of whether an entrant is an invitee or a licensee. Comment b states:

Invitation and Permission - Although invitation does not in itself establish the status of an invitee, it is essential to it. An invitation differs from your permission in this: An invitation is conduct which justifies others in believing that the possessor desires them to enter the land; permission is conduct which justifies others in believing that the possessor is willing that they shall enter if they so desire.

Cresswell v. End, supra at 675; Updyke v. BP Oil, supra at 549.

The Plaintiff in Updyke slipped on ice at a gas station. She entered the property for the sole purpose of using a public pay phone located on the periphery of the property. The Court held that she was a public invitee since the possessor maintained the phone on its property for the use of the public. There was a “Welcome” sign on the property, clearing welcoming the public.

The relevant question is whether the possessor desires the presence of the public. Id, at 550. The possessor argued that in order to qualify as an invitee the possessor must benefit from the entrant's presence. The Court cited comment d to §332 of the Restatement:

Where land is open to the public it is immaterial that the visitor does not pay for his admission, or that the possessor's purpose in so opening a land is not a business purpose, and the visitor's presence is in no way related to business dealings with the possessor or to any possibility of benefit or advantage, present or prospective, pecuniary or otherwise to the possessor.

The Court found that the land owner's interests did not need to be served to find an individual a public invitee. Id.

Invitees are entitled to the highest standard of care owed to any entrant upon land. Swift v. Northeastern Hospital of Philadelphia, 456 Pa. Super. 330, 690 A.2d 719, 722 (1997); Treadway v. Ebert Motor Company, 463 A. 2d 994, 998 (Pa. Super. 1981). Possessors of land are under an affirmative duty to protect invitees not only against dangers which its employees knew about, but also against those which with reasonable care one or more might have discovered by reasonable inspection. Id. Possessors have an affirmative duty to warn invitees of any such dangers. Greco v. 7-Up Bottling Co., 165 A. 2d 5 (Pa. 1960). They have an affirmative duty to maintain the premises in a reasonably safe condition. Bersa v. Great Atlantic & Pacific Tea Company, 215 A. 2d 289, 292 (Pa. Super. 1965). Invitees enter with an implied assurance of preparation and reasonable care for their protection and safety. Treadway, supra.

The Restatement (Second) of Torts § 343 provides that a possessor of land is liable to his invitee for a condition on land only if, he:

(a) knows or by the exercise of reasonable care would discover the condition, and should realize it involves unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger.

Kiehner v. School District of Philadelphia, 712 A.2d 830, 833-34 (Pa. Commw. 1998). The possessor of land is not liable to the invitee for injuries caused by a “condition on the land whose danger is known or obvious to them unless the possessor should anticipate the harm despite such knowledge or obviousness”. Restatement (Second) of Torts §343 (1965); Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983).

Notice of the hazard is a vital issue for invitees. An invitee may show notice in three ways. First, if the possessor had a hand in creating a dangerous condition, that will obviously suffice. Alternatively, the entrant onto land can show that the possessor had either actual or constructive notice of it. Swift v. Northeastern Hosp. of Phila., supra, at 722 (summary judgment proper where Appellant failed to produce any evidence to establish "how the water arrived on the floor" and . . . "how long the condition existed").

Section 343 of the Restatement requires the invitee to prove either that the store owner helped to create the harmful condition, or that she had actual or constructive notice it. Zito v. Merit Outlet Stores, 647 A.2d 573, 575 (Pa.Super. 1994). If the injury was the result of defendant's active negligence, constructive notice need not be proved. Schwartz v. Warwick-Philadelphia Corporation, 226 A.2d 484, 487 (Pa. 1967) (defendant’s waiters negligently dropped asparagus to the floor. Therefore, plaintiff did not have to prove constructive notice).

Constructive notice means that in the exercise of reasonable care, the possessor ought to have known of the hazardous condition. Moultrey v. Great A & P Tea Co., 422 A. 2d 593, 596 (Pa. Super. 1981) (Invitee who slipped on cherry on floor of store was not entitled to recovery against proprietor absent evidence as to how it got on the floor or how long it had been there prior to fall, from which jury might conclude that store had breached its duty in not removing it).

What constitutes constructive notice depends on the facts of each case. If the condition is one that frequently recurs, actual notice can be imputed to the landowner. Id. Another key factor is “the time elapsing between the origin of the defect or hazardous condition and the accident”. Neve v. Insalacao's, 771 A.2d 786, 791 (Pa.Super. 2001).

The relative durability of the defect comprises a related factor. For example, in Rogers, supra , we held that spilt soup on the floor was too transitory a condition to charge the defendant with notice. Id. at 764. Much differently, in Hartigan, supra, our Supreme Court held that a store patron who tripped on a raised metal strip on a stair could charge the proprietor with notice because of the durability of the condition, if a witness saw the defect immediately thereafter. Id. at 652.


Constructive notice is shown if the condition existed for a sufficient time that defendant should have known of it. Usually, this is a jury question. Winkler v. Seven Springs, Inc., 240 Pa. Super. 641, 359 A.2d 440 (1976). However, the determination must be made by the court if the evidence requires the jury to resort to conjecture, guess or suspicion. Lanni v. Pa. R.R. Co., 88 A.2d. 887, 889 (Pa. 1952).

A spot of grease that remained on the floor for more than an hour prior supported a finding that a storekeeper had constructive notice. Diakolios v. Sears, Roebuck & Company, 127 A.2d 603 (Pa. 1956). It was for the jury to say whether a caterer should have known of the presence of a piece of apple strudel since two hours elapsed between the end of dinner and the incident. Lederhandler v. Bolotini, 167 A.2d 157 (Pa. 1961).

In Swift v. Northeastern Hospital, 456 Pa. Super. 330, 690 A.2d 719, 722 (1997), the Court found that the plaintiff had failed to establish actual or constructive notice. Plaintiff presented no evidence as to how the water got on the floor nor as to how long it was there. There was no evidence that the area was not monitored or maintained by the defendant. The Court held that without such proof, plaintiff could not establish a breach of legal duty. Id. 690 A.2d at 722-723.

The Court in Craig v. Franklin, 555 F. Supp.2d 547 (E.D. Pa. 2008), found that the plaintiff had failed to establish actual or constructive notice. Plaintiff had slipped on a puddle of soda while walking through a mall. There was no evidence that the mall caused the soda spill or had actual notice of it. The Court considered the number of people using the premises, the frequency of their use, the nature and location of the defect, its probable source and defendant’s opportunity to remedy it. Id. at 549-550. The Court noted the special importance of the time elapsing between the origin of the defect and the incident. Id. citing Neve v. Insalaco's, 771 A.2d 786, 791 (Pa. Super. 2001). Since the hazard likely existed for a very short period of time, the possessor, even "by exercise of reasonable care", would not discover it, and therefore, owed no duty to protect any invitee from it. Id. at 550 citing Restatement (Second) of Torts § 343.

In cases involving harm from third parties, there is a big difference in the duty owed to invitees v. licensees. One who holds her land open to the public for business purposes owes a duty to her invitees to take security precautions to prevent harm from other persons if she has reason to know that other persons are likely to endanger her invitees. Reason v. Kathryn's Korner Thrift Shop, 169 A.3d 96, 102-03 (Pa. Super. 2017); Paliometros v. Loyola, 932 A.2d 128, 133 (Pa. Super. 2007); Rabutino v. Freedom State Realty Co., 809 A.2d 933, 939 (Pa. Super. 2002). There is no such duty to licensees. T.A. v. Allen, 669 A.2d 360, 362-64 (Pa. Super. 1995) (en banc).

Social guests, although they are invited to the premises by the occupants, are licensees, not invitees. Davis v. McDowell National Bank, 180 A.2d 21, 24 (Pa. 1962); Hackett, 195 A.3d at 251-52. In contrast, guests at a party held at a hotel or motel are invitees. Paliometros, 932 A.2d at 133-34; Rabutino, 809 A.2d at 939. A guest at a party to which the general public is invited is an invitee if an admission fee is charged. Castellano v. Local 302 International Association of Firefighters, 70 Pa. D.&C.4th 415, 420-25 (C.P. Lehigh Co. 2004) (partygoer who paid $7 admission fee to attend a party open to the general public was invitee); Lomuscio v. Cole, 2022 WL 17423017 (unpublished opinion).

Contrast Klar v. Dairy Farmers of America, Inc., 268 A.3d 1115, 1127-29 (Pa. Super. 2021), appeal granted, 281 A.3d 299 (Pa. 2022) (charging of a fee at a social event to defray costs of the event did not change the defendant's status as a social host where the event was restricted to defendant’s employees and the issue was defendant’s liability for guest’s consumption of alcohol.)

Getting back to Santa Claus and Hansel and Gretel. They all were invited onto the property. The possessors are held to the highest duty. And the plaintiffs all lived happily ever after!

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