Cammack, C. J., and Sims, J., dissent.
STANLEY, Commissioner. The appellee, Mrs. Bonnie M. Poole, was injured by slipping on ice and falling as she was about to enter a door of a clubhouse owned and operated by the appellant, City of Madisonville. She recovered judgment for $7,500 damages.
For a consideration paid the city, organizations and individuals use the facilities of the clubhouse for dances, parties, etc. It had been engaged on that evening, March 11, 1948, by the hostesses of a social club to which Mrs. Poole belonged. The city does not challenge the proposition of proprietary liability for negligence of its employees at the clubhouse but denies negligence.
The key to the case is the character of the relationship between the plaintiff and the defendant, for upon the classification rests the degree of care and legal liability of the defendant. Sometimes the process of elimination is helpful in determining the status of a party.
Though the owner rented the facilities for a few hours to the hostesses of the party, or perhaps to the social club through them, the transient and limited use may not be regarded as establishing the relationship of landlord and tenant, as is argued by the appellant. The owner continued in the exclusive legal possession and control, and had supervision and the duty of maintaining the premises all the time. The accident happened on the porch of the building and not within the rooms being used. Pinnell v. Woods, 275 Ky. 290, 121 S.W.2d 679, does not support the view of tenancy because of distinguishing facts. There a church society had been given the privilege of using an empty storeroom for a rummage sale. It had been given complete control of the premises, so that the relationship of landlord and tenant was created, hence, the owner was held not responsible to a customer injured by being struck by a heavy cabinet which was caused to fall by the negligence of the tenant society.
The plaintiff was not a licensee, for the marks of such relationship are missing. They are, in brief, presence on the property of another (a) as a matter of privilege by virtue of the possessor's consent, or (b) a gratuitous licensee, for one's own convenience, pleasure or benefit pursuant to permission or acquiescence, express or implied, and without interest, profit or benefit to the possessor of the place. Restatement of the Law of Torts, §§ 330, 331; Kentucky & W. Va. Power Co. v. Stacy, 291 Ky. 325, 164 S.W.2d 537, 170 A.L.R. 1; Shoffner v. Pilkerton, 292 Ky. 407, 166 S.W.2d 870.
The privilege of using the premises for a consideration and the nature of plaintiff's presence created a closer relationship. The modern delineation of an invitee or business visitor, is 'one who is invited or permitted to come upon the land of another for a purpose directly or indirectly connected with the business which the possessor conducts thereon, or for a purpose which is connected with the visitor's own business, which itself is directly or indirectly connected with any purpose, business or otherwise, for which the possessor uses the premises.' Kentucky & West Virginia Power Co. v. Stacy, 291 Ky. 325, 164 S.W.2d 537, 539, 170 A.L.R. 1, citing Restatement of Law of Torts, § 332, p. 897. Descriptions in different language are given in Eggen v. Hickman, 274 Ky. 550, 119 S.W.2d 633; Shoffner v. Pilkerton, 292 Ky. 407, 166 S.W.2d 870; A. L. Dodd Trucking Service v. Ramey, 302 Ky. 116, 194 S.W.2d 84. The relation in this case is quite analogous to that of a hotel and guest. If the plaintiff be regarded as a guest of the ladies of the club who, as hostesses, made the arrangements and paid for the privilege of using the clubhouse for the evening, then the relationship was like that of a visitor of a guest in a hotel. Whether guest or visitor of a guest, she must be deemed to have been an invitee of the city, although in this connection the term 'invitee' is sometimes but a legal fiction, or legal extension of the literal meaning of invitation. The agent of the city who rented the facilities knew that members of the club other than those who specially procured the use would be in attendance. It was his duty, as he testified, to prepare and maintain the premises for the party. We hold the plaintiff was an invitee.
It is well recognized that an invitee or business visitor occupies a favorable position in respect of the legal duty owing him. The owner or possessor of the property owes him the active, positive duty of keeping those parts of the premises to which he is invited, or may reasonably be expected to use, in a condition reasonably safe for his use in a manner consistent with the purpose of the invitation. If the possessor knows, or by the exercise of ordinary care or reasonable diligence could discover a natural or artificial condition which, if known, he should realize involves an unreasonable risk to the invitee and does not remedy the condition or serve fair warning of peril, he is negligent. Eggen v. Hickman, 274 Ky. 550, 119 S.W.2d 633; Montgomery Ward & Co. v. Hansen, 282 Ky. 188, 138 S.W.2d 357; Lyle v. Megerle, 270 Ky. 227, 109 S.W.2d 598. In 38 Am.Jur., Negligence, § 96, on authority of Pettyjohn & Sons v. Basham, 126 Va. 72, 100 S.E. 813, 38 A.L.R. 391, it is cryptically said: 'Summarily stated, to the extent of the invitation given a property owner owes to an invitee the duty of provisions, preparation and lookout.'
We consider the contentions of the appellant of exclusion from the application of the foregoing law of responsibility.
1. The appellant denies liability for the reason the appellee fell at a place not covered by the invitation. There is no doubt that liability to an invitee is coextensive both in respect to the purpose and place contemplated. That includes the places patrons or invitees ordinarily and customarily go and the approaches thereto. Smith v. Trimble, 111 Ky. 861, 64 S.W. 915; Cumberland Hotel Operating Co. v. Hartman, 264 Ky. 300, 94 S.W.2d 637; Lerman Bros. v. Lewis, 277 Ky. 334, 126 S.W.2d 461. The claim of exclusion rests upon the proposition that the guests on this occasion were not expected to enter the building through the front or west door but to enter through the south or side entrance. The side door opened on a porch and into a corridor which is to the rear of the room where the party was being held. On this occasion the side porch light was on and the door unfastened. Most of the guests went in that way. At the front or west entrance there are two doors. One opens from a porch into a vestibule and the other directly into the clubroom. The driveway runs along both entrances, so one is as conveniently accessible as the other. The front light was not on, but it appears ample light was afforded through the windows and panels of the doors. After parking their car and seeing the guests who had already arrived sitting around the fire in the well lighted clubroom, Mrs. Poole and her companions went on the west porch to the main entrance. They found the door to the vestibule fastened and then went to the door leading into the club room. It too was fastened, but one of the party inside opened the door for them. As she was following the other couple into the room, Mrs. Poole slipped on a small sheet of ice at the threshold.
The former custodians testified their orders were to have these front doors unlocked when parties were to be given and that all the doors were unfastened for use on such occasions. Jack Ashby succeeded them in January, 1948, two months or more before the accident. The mayor of the city testified there had been no change in the rules and regulations. Three of the hostesses talked with the custodian that afternoon and nothing was said with reference to what doors should be used. Several witnesses testified that they had used both entrances on other occasions, both day and night. Mrs. Poole had been at the club only twice before and had gone in the front door on both occasions. One of the hostesses had gone in that way that evening just before Mrs. Poole and her party arrived. The custodian had let in a deliveryman of soft drinks for the party through the front entrance that afternoon.
The defendant's evidence on this point is that no person had used the front doors for two months before the accident, and that the facilities had been used on 10 to 25 occasions during this period.
The custodian had not prepared the front entrance for visitors, but he had not indicated by sign or statement that it was out of bounds and should not be used. We cannot regard the absence of the porch light as necessarily constituting exclusion, and the fact that the doors were fastened could not, of course, have been known until tried. The door had been opened when the plaintiff fell. There was nothing extraordinary or unusual in the plaintiff and her companions going there. The situation is very different from a case where an invitee went to a part of premises to which he was not invited or where he ought not to have gone, such as portions of the building reserved for the exclusive use of the occupant and his employees, and the public was not expected or wanted there. Comberland Hotel Operating Co. v. Hartman, 264 Ky. 300, 94 S.W.2d 637, and Lerman Bros. v. Lewis, 277 Ky. 334, 126 S.W.2d 461, are typical cases of that class. Here the place of the accident was a prominent part of the premises to which the plaintiff was invited. It was designed and intended for such use. Guests usually go to the front door rather than the side door of houses to which they are invited or welcome. It cannot be said as a matter of law that one should not enter that way in the absence of directions to enter another way.
We think it is sound law that 'if an invitee does not go beyond that part of the premises to which, as the situation reasonably appears to him, the invitation extends, he cannot be held to have become a mere licensee because, as a matter of fact, the purposes of the invitation could have been fulfilled without going on such part of the premises.' 65 C.J.S., Negligence, § 48, p. 538. It seems to us the character of the premises and their use, together with all the other circumstances, imported 'knowledge by the defendant of the probable use by the plaintiff of the defendant's property so situated and conditioned as to be open to and likely to be subjected to such use.' 38 Am.Jur., Negligence, § 97. We think it could be reasonably anticipated that ...