Whelan v. Van Natta Ct. Of App. Of Ky.,

382 S.W. 2d.205 (1964).

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Nature of the Case

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Facts

P arrived at the store to purchase cigarettes. He had traded there regularly for the past ten years. P made his purchase and then inquired about a box for his son. D was busy behind the counter. He replied, 'Go back in the back room. You will find some back there.' P went to the rear of the store and opened the door to the storage room. The room was dark, so P paused to allow his eyes to become accustomed to the darkness. He testified that he did not see a light cord and did not look for one. There was a light in the room, but it was so situated that if turned on it might not have illuminated the stairwell. Across the room and above the stairwell there was a window, through which little light filtered because of paint or dirt. P's eyes had adjusted to the darkness, and he saw a box. On reaching down to pick it up, he discovered it was full. P then walked about twelve or fifteen feet toward the window and fell into an unseen stairwell, sustaining his injuries. The trial court held that P was a licensee at the time of his fall to whom D owed no duty to provide a safe place, save and except to have abstained from doing any intentional or willful act endangering his safety or knowingly letting appellant run upon a hidden peril. D got the judgment and P appealed.