Blumberg, Allan B.

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Implied Invitation - Crown Cork and Seal Co. v. Kane

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Maryland Law ReviewVolume 18 | Issue 4 Article 8Implied Invitation - Crown Cork and Seal Co. v.KaneAllan B. BlumbergFollow this and additional works at: http://digitalcommons.law.umaryland.edu/mlrPart of the Torts CommonsThis Casenotes and Comments is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has beenaccepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, pleasecontact smccarty@law.umaryland.edu.Recommended CitationAllan B. Blumberg, Implied Invitation - Crown Cork and Seal Co. v. Kane, 18 Md. L. Rev. 338 (1958)Available at: http://digitalcommons.law.umaryland.edu/mlr/vol18/iss4/8MARYLAND LAW REVIEW [VOL. XVIII§3. No act or agreement of the buyer before, at thetime of, or after, the making of a contract for thepurchases of newly constructed improvements onrealty, nor any agreement or statement by thebuyer in such contract shall constitute a valid wai-ver of the provisions of §1.Perhaps the most immediate remedial effort would liein a third direction. In the instant case, as in perhaps amajority of development home cases, the purchaser hadan F.H.A. mortgage loan.' s Modifications of existing F.H.A.regulations requiring higher standards of workmanship andmaterials, and their enforcement by that agency mighteffectively encourage irresponsible builders more ade-quately to prepare plans and perform construction con-tracts. For the practicing attorney at the present time, theonly method of protecting his client would seem to be tocompel the builder, at the time of the conveyance, to signa warranty agreement. Under the decided cases it wouldappear that such an agreement, being collateral in nature,would not be merged in the subsequent conveyance.19NELSON R. KEI, JR.Implied InvitationCrown Cork and Seal Co. v. Kane'Appellee Kane, in the course of his employment as atruck driver, was sent to pick up freight at appellant'swarehouse. He had to drive up to a loading platform adja-cent to appellant's parking lot. Smoking was prohibited inthe yard, on the loading platform, and in the warehouse.iS212 Md. 402, 407, 129 A. 2d 518 (1957). The F. H. A. form provided:"'The construction shall equal or exceed the applicable FHA Mini-mum Construction Requirements and shall comply with applicable codesand regulations, zoning ordinances, restrictive covenants, and the ex-hibits submitted with the related application, as corrected by FHA.The highest of all the aforegoing shall govern. Each item of materialor equipment shall equal or exceed that described or indicated. Allparts shall be sound and all construction free of faults. All work shallbe performed in a workmanlike manner and in accordance with thebest practice. * * *' "Rosenthal v. Heft, 155 Md. 410, 142 A. 598 (1928) ; Edison Realty Co.v. Bauernschub, 191 Md. 451, 62 A. 2d 354 (1948) ; Laurel Realty Co. v.Himelfarb, 194 Md. 672, 72 A. 2d 23 (1950).1213 Md. 152, 131 A. 2d 470 (1957).1958] CROWN CORK & SEAL CO. v. KANE 339There was, however, a smoking room in the cellar of thewarehouse.The appellee was told by the shipping clerk that itwould be some time before his truck was loaded and to"take it easy". He went through the warehouse to thesmoking room as he had often done before. When return-ing through the warehouse, he was struck and injured bya fork lift truck driven by an employee of the appellant.Kane testified that he had used the smoking room onperhaps thirty previous occasions. He had first learnedabout it six or seven years before the accident when oneof the checkers had told him to go down there and not tosmoke elsewhere. He testified that many of the othertruckers habitually used the room. However, the fore-man of the shipping department testified that the smokingroom was for the use of the employees only. He furtherstated that when he had seen visiting truckers in there,"he chased them right back out". The Court of Appealsaffirmed the lower court and permitted recovery, holdingthat Kane was a business invitee even while going to andfrom the smoking room. Judge Prescott dissented on thegrounds that an "invitee is limited to the 'area of invita-tion', which is that part or parts of the premises that theowner has thrown open to him for the purpose whichmakes him an invitee".2The charge to the jury offered them only two possibili-ties: Kane was a trespasser or he was an invitee. Thequestion remains whether Kane might have been foundto be a licensee while coming from the smoking room, andif so whether the standard of care owed to him wouldhave been any higher than if he had been found to be atrespasser.' The RESTATEMENT OF TORTS would seem tobe authority for offering the jury this third choice -finding that Kane was a licensee.4 The RESTATEMENT,before it will classify one as a business invitee, requiresthat there be some economic interest between the parties,whereas a great many courts require only that there bean implied invitation from the landowner or occupier. 5Ibid., di8. op. 164, 165.0 The Court declined to rule on this since the defentant made no timelyobjection to the charge of the lower court. Ibid., 162-3.' 2 RESTATEMENT, TORTS (1934) §330 defines a licensee as "a person whois privileged to enter or remain upon land by virtue of the possessor's con-sent, whether given by invitation or permission." §332 classifies one as abusiness visitor only if he is on the land or premises "for a purpose directlyor indirectly connected with business dealings between them."5 For a more thorough discussion of the implied invitation or economicbenefit theory see PROSSER, LAW OF TORTS (2nd ed. 1955) 452, §78.MARYLAND LAW REVIEW [VOL. XVIIIAlthough there was originally an economic interest be-tween Kane and the defendant, it is possible that the busi-ness relationship was suspended during Kane's visit to thesmoking room.The Maryland Courts have shown a tendency to declareone a licensee rather than an invitee if there is no economicbenefit involved. In Peregoy v. Western Md. R.R. Co.,6the Court said that if one enters with the possessor's con-sent and for the sole interest of the one who is entering,then he is a licensee. The Court further stated:"An invitee or business visitor is one invited or per-mitted to enter or remain upon land for a purposeconnected with or related to the business of theoccupant. '7It should be noted that, used in this context, economicbenefit is not limited to situations in which the particularvisit promises direct, immediate benefit to the owner oroccupier of the premises. This point was well illustratedin Gordon Sleeprite Corp. v. Waters.' The plaintiff hadgone to collect a bill at the defendant's office and find-ing no one there crossed a yard in back of the office, en-tered defendant's factory and fell into an elevator shaft.The Court found that he was a bare licensee while in thefactory. If the plaintiff had been injured while in theoffice, it can be assumed that he would have been an in-vitee but in going beyond the area of invitation he lost thestatus of invitee.The same problem arose in the fourth circuit in ElktonAuto Sales Corporation v. State of Maryland.10 The defen-dant's business was divided into a show room and a repairshop. The defendant testified that the shop was privateand not open to the public. Ferry had gone to the repairshop and was killed. Evidence was shown that customershad entered the repair shop to buy supplies. The dominantpurpose of the decedent's visit at the time of the accidentwas to obtain some oil, but at the same time he conversedwith defendant's mechanic regarding possibility of addi-tional work on another automobile awaiting repairs. The6202 Md. 203, 95 A. 2d 867 (1953).'Ibid., 207.8165 Md. 354, 168 A. 846 (1933).Ibid., 358:"When the plaintiff wandered Into the factory of the defendant, hewas a bare licensee, Intruder or volunteer, to whom the defendant,under the circumstances, owed no duty of protection ..1053 F. 2d 8 (4th Cir. 1931).1958] CROWN CORK & SEAL CO. v. KANE 341circuit court affirmed a judgment 'for plaintiff in findingthat Ferry was an invitee and stated:"The substance of the charge was that the jurymight find the status of Ferry was that of an inviteeif the defendant by its conduct impliedly invited thepublic to its repair shop. It is well-established lawthat the defendant's invitation may be either expressor implied.""Although this statement by the court merely mentions ex-press or implied invitation, it may still be assumed that thedecedent by going to purchase oil still had some economicdealings with the defendant.It appears that the prior Maryland cases insisted upona benefit derived or at least a possibility of a benefit to thelandowner or occupier as one of the essentials of businessinvitation. Even though many of these cases make nospecific mention of benefit or mere permission, it appearsthat economic benefit was present in all cases where plain-tiff was held to be an invitee.2 Judge Prescott, dissentingin the instant case, states:"While I have not completely exhausted the sub-ject, I have found no previous case in Marylandwhere the 'economic' theory has been totally disre-garded; .... 18The instant case (particularly viewed in the light of GordonSleeprite Corp. v. Waters)'4 presents a real questionwhether the element of economic benefit, apparently essen-tial to Kane's status as an invitee, was present duringthe period in which he was going to, occupying and return-ing from the smoking room. If the trial judge had givenfuller instructions to the jury, it is entirely possible thatthey would have found Kane to be a licensee only at thetime of the injury since it is fairly apparent that Kanewent beyond the area of invitation. Prior cases strongly- Ibid., 12.A permissive user was involved in Myzkiewicz v. Filling Stations, 168Md. 642, 178 A. 856 (1935). There the defendant had habitually allowedthe plaintiff to cut across its filling station. The court held the plaintiffto be a bare licensee. On the other hand, however, in Burke v. Md., Del.,and Va. R.R. Co., 134 Md. 156, 106 A. 353 (1919), the defendant let peoplecome to its wharf for the purpose of going on its steamboat to purchasefood. The plaintiff, while waiting to board the boat, was injured. Thecourt in reversing judgment for the defendant found that since the plain-tiff would have been an invitee in the store of the defendant he was alsoan Invitee while waiting to enter the store."213 Md. 152, dis. op. 164, 165, 131 A. 2d 470 (1957)."165 Md. 354, 168 A. 846 (1933).MARYLAND LAW REVIEW [VOL. XVIIIsuggest that one must stay in the area of invitation to pre-serve his status as invitee.1While there may be some doubt in Maryland as to whenone is a licensee and when one is an invitee, the duty owedto each is more easily determined. In Benson v. BaltimoreTraction Company, 6 the plaintiff as part of a class visitedthe defendant company. The plaintiff's class had asked tobe invited and the defendant gave its permission. TheCourt in affirming a judgment for the defendant quoted theMassachusetts case of Sweeney v. Old Colony Etc. R.R.Co.:"" 'The owner of the land is not bound to protect orprovide safeguards for wrong-doers. So a licensee whoenters on premises by permission only, without anyenticement, allurement or inducement being held outto him by the owner or occupant, cannot recover dam-ages for injuries caused by obstructions or pitfalls. Hegoes there at his own risk and enjoys the license sub-ject to its concomitant perils. No duty is imposed bylaw on the owner or occupant to keep his premises ina suitable condition for those who come there solelyfor their own convenience or pleasure, and who arenot either expressly invited to enter or induced tocome upon them by the purpose for which the premisesare appropriated and occupied, or by some preparationor adoption of the plan for use by customers or pas-sengers, which might naturally and reasonably leadthem to suppose that they might properly and safelyenter thereon'."' 8It seems reasonable to say that the duty owed to alicensee is fairly well settled in Maryland. However, therestill remains some doubt as to when one will be held tobe a licensee and when one will be classified as an invitee.Although apparently not mentioned in any case, thereseems to be a possibility, from the facts in the Kane 9 case,that when a person enters premises as a business inviteeand then exceeds his invitation, he will be classified aninvitee if there was a custom or implied invitation for" In Riganis v. Mottu, 156 Md. 340, 144 A. 355 (1929), the court wascareful to point out that plaintiff was asked to inspect lumber in a certainpart of the yard. It can be assumed from this careful distinction thatparts of a business place can be area of invitation and other places are not.'e77 Md. 535, 26 A. 973 (1893).1 10 Allen (92 Mass.) 368, 87 Am. Dec. 644 (1865)."Supra. n. 16, 542.19213 Md. 152, 131 A. 2d 470 (1957).1958] FOOD CONSUMED ON PREMISES - SALE 343him to go to the place not originally covered by his in-vitation. However, if he wanders to a place where he hadnever been before or clearly had no right to go, then itseems more likely he will be classified a licensee or perhapseven a trespasser. This question of status on implied in-vitation or custom will remain in doubt until a clearer viewis taken by the Court.ALLAN B. BLUMBERGAmended Definition Of Sale To IncludeFood Consumed On PremisesEffective June 1, 1958, a new definition of the word salewas added to the Maryland Uniform Sales Act:"'Sale' includes a bargain and sale as well as a saleand delivery and also the serving or providing of foodfor human consumption by any caterer, or by any res-taurant, hotel, boarding house, dining room or anyother eating establishment."'The effect of this addition will, it would clearly seem,result in bringing food purchased in a restaurant for im-mediate consumption under the definition of an impliedwarranty.Prior to this change in the statute, the only case present-ing the question of whether food purchased in a restaurantwas a sale or a service was Dining Hall Co. v. Swingler.2There, the plaintiff entered the defendant's restaurant andordered a sandwich. When she bit into the bread, a piece oftin lodged in her mouth causing serious injury. The Court,in reversing judgment for the plaintiff, concluded that thepurchase and eating of food on the premises was not a salewithin the meaning of the Sales Act.' The feeling wasexpressed that if a sale were found, and therefore an im-17 MD. CODE (Cum. Supp. 1958), Art. 83, §94(1). It should be noted thatthis is an amendment to the Uniform Sales Act in Maryland by the Mary-land General Assembly, and not one promulgated by the Commissioners onUniform Laws. The portion added at the end is italicized.173 Md. 490, 197 A. 105 (1938), noted, 2 Md. L. Rev. 277 (1938).8 Ibid., 503. The Court there said:"We hold that an action in tort in such cases as this affords to theInjured person a convenient and adequate remedy, and disposes of thecontention that the adoption of the negligence theory, rather than thatof an implied warranty, would amount to a practical denial to thoseinjured in cases from food adulteration, foreign substances or unmer-chantable quality."

Implied Invitation - Crown Cork and Seal Co. v. Kane

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