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KAY v. KAY

July 15, 1991

MARY ALISSA HARRIS KAY
V.
THOMAS AND GLADYS KAY



Appeal from Hot Spring Circuit Court; John W. Cole, Judge; affirmed.

SYLLABUS BY THE COURT

1. WORDS & PHRASES - INVITEE - DEFINITION. - An invitee is one induced to come onto property for the business benefit of the possessor.

2. PROPERTY - OWNERSHIP - INJURY TO INVITEE - MUST BE PRIOR KNOWLEDGE OF DANGER. - Generally, where there has been an injury from the same or a similar insect or rodent but there has been no showing of knowledge on the part of the owner or occupier of the premises of the existence of the specific danger and no showing of acts or omission amounting to negligence resulting in the injury, verdicts directed in favor of the defendants have been affirmed.

3. APPEAL & ERROR - REVIEW OF DIRECTED VERDICT - EVIDENCE VIEWED IN FAVOR OF APPELLANT. - In reviewing the directed verdict against the appellant, the appellate court gives the appellant's evidence its strongest probative force.

4. APPEAL & ERROR - DIRECTED VERDICT PROPER GIVEN THE EVIDENCE. - Where there was no showing that any kind of spider, much less a brown recluse, had been actually seen on the premises, nor was there evidence that such a harmful insect had ever been seen in the area in which the home was located, there was no evidence from which it could be determined how or, when, the spider came upon the premises and in these circumstances, it would be unfair and a virtual declaration of absolute liability to hold the appellees responsible for appellant's injury.

The opinion of the court was delivered by: David Newbern, Associate Justice.

This is a negligence case in which we review a directed verdict granted to the defendants. Mary Alissa Harris worked as a housekeeper in the home of the appellees, Thomas and Gladys Kay. Subsequent to the incident which gave rise to her claim against the Kays, she married their son and is now Mary Alissa Harris Kay, the appellant. For ease of identification, the appellees [306 Ark Page 323]

will be referred to as "the Kays," and Mary Alissa Harris Kay will be referred to as "Mary."

Mary was bitten by a brown recluse spider while working in the Kays' home, and she sustained a serious injury and substantial medical expenses as a result of the bite. Mary's complaint alleged the Kays knew of "the presence of spiders in their home and did nothing to make the premises safe" for her. At the conclusion of Mary's case-in-chief, the Trial Court granted the Kays' directed verdict motion. We affirm the judgment because Mary's evidence was insufficient to prove the Kays failed to honor the duty they owed to Mary as an invitee in their home.

Mary testified she had observed spider webs, cobwebs, and other signs of insects in the Kays' house. She discussed the matter with the Kays who advised her they would take care of the problem. She said they did not take care of it, and when she later returned to the house to clean she was bitten by the brown recluse spider while cleaning cabinets.

Mary's husband, Danny Kay, testified he usually sprayed the Kay's home for insects and had done so for several years, but he had not been asked to spray in March of 1990.

[1] In the course of giving his oral ruling granting the Kays' motion for directed verdict, the Trial Court stated that Mary was an employee and not an invitee. While we have no case stating flatly that an employee working on her employer's premises is an invitee, we have no doubt that is the law. In Coleman v. United Fence Co., 282 Ark. 344, 668 S.W.2d 536 (1984), we held the plaintiff was a trespasser and contrasted an invitee as "one induced to come onto property for the business benefit of the possessor," citing W. Prosser, Law of Torts 58 (4th ed. 1981). In Daniel Const. Co. v. Holden, 266 Ark. 43, 585 S.W.2d 6 (1979), we held that an employee of a subcontractor lost his "business invitee" status when, for a personal purpose, he stepped off the portion of the premises where his job required him to be and was injured. The clear implication was that, had the employee remained on the premises controlled by the general contractor, his status would have been that of "invitee." We have no doubt that Mary was an invitee when she was working at the Kays' residence at their invitation. [306 Ark Page 324]

The licensee-invitee distinction was, however, not the basis of the directed verdict. The Trial Court stated that even if Mary were an invitee and thus owed the duty of ordinary care to protect her from harm, there was no evidence that the Kays violated that duty. We agree with the Trial Court's conclusion.

Cases arising from insect bites to invitees are few. The only one cited by the Kays is Brunnell v. Signore, 263 Cal.Rptr. 415, 215 Cal.App.3d 122 (4th Dist. 1989). In that case a guest in a vacation home was bitten by a brown recluse spider and sued the owner of the premises alleging negligence in failure to maintain the property properly and failure to warn of a dangerous condition. Summary ...


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