Bennett v. Kroger Co. ( 1996 )

This case demonstrates one of the difficulties in applying the categories of licensee and invitee as defined in Provencher v.Ohio Dept. of Transp. (1990), 49 Ohio St.3d 265,551 N.E.2d 1257. As the majority correctly states, the Supreme Court of Ohio has stated that "[b]usiness invitees are persons who come upon the premises of another, by invitation, express or implied, for some purpose which is beneficial to the owner," while a licensee is "a person who enters the premises of another by permission or acquiescence, for his own pleasure or benefit, and not by invitation." Id. at 266, 551 N.E.2d at 1258.

Bennett drove to Kroger to buy toilet paper. This purpose would clearly benefit Bennett, who would receive the toilet paper; however, the purpose would also benefit Kroger, which would receive Bennett's money. Alas, Kroger had closed thirty minutes earlier, foiling this mutually beneficial purpose.

To determine what to do with Bennett, given theProvencher definitions, one must further inquire whether the attendant facts and circumstances indicate an implied invitation by Kroger for a purpose beneficial to Kroger, or whether Bennett entered purely for her own pleasure or benefit.

Instead, the majority holds as a matter of law that an individual who enters the parking lot of a store under the mistaken impression that the store is open for business, when in fact it is closed, enters purely for her own pleasure or benefit.

I would hold that a question of fact exists whether this plaintiff was a licensee or invitee at the time she entered the premises. If the facts and circumstances indicate that Kroger extended an implied invitation for a purpose beneficial to Kroger, then Bennett is an invitee.

Here, Bennett arrived at Kroger only thirty minutes after it had closed, the lights were on in the store, people were clearly visible inside, and approximately twenty cars remained in the parking lot,¹ arguably giving the impression that the store was still open at the time Bennett entered the lot. Bennett further believed that this Kroger store would be open because the Kroger store at which she regularly shopped was open twenty-four hours a day. The record is silent about whether the Kroger store sign was lit.

Reasonable minds may differ as to whether Kroger extended an invitation by creating a reasonable, yet mistaken impression that it remained opened, though the store was in fact closed. Because a factual issue remains, Civ.R. 56 is inappropriate.

For this reason, I respectfully dissent.

¹ Evidence suggested that at least some of the vehicles were parked in the Kroger lot so that their owners could visit a tavern across the street. Without more, these persons would surely be licensees at best.