Alton L. Beebe, et al., Appellants, v. Roger Moses, et al., Respondents, 113 Wash. App. 464

Kato, A.C.J. —Alton Beebe attended a Tupperware party at the home of his stepdaughter Aimee Moses. As he left the party, Mr. Beebe was injured when he fell down some steps. The Beebes sued the Moseses. The trial court instructed the jury that Mr. Beebe was a social guest at the time of his injury. The jury returned a defense verdict. We reverse and remand for a new trial. Aimee Moses hosted a Tupperware party at her home. Ms. Moses was the host of the party, but she did not sell Tupperware. Mable Bull was the consultant actually selling the Tupperware at Ms. Moses’ party. Ms.

Bull received a list of people from Ms. Moses to whom she sent invitations and collected the money for Tupperware purchases. In exchange for hosting the party, Ms. Moses received free Tupperware products. Specifically, she received “[a] little bowl” and a $15 credit toward purchasing more Tupperware. Report of Proceedings at 125. Alton and Sherry Beebe were invited to attend the Tupperware party. Mr. Beebe is Ms. Moses’ stepfather. The Beebes had visited Ms. Moses approximately six or more times before the party. On the night of the accident, they were there for the Tupperware party.

The Beebes arrived about 30 minutes early. They purchased a water pitcher from Ms. Bull. When leaving the party to get to his car, Mr. Beebe tripped and fell down the Moseses’ back stairs. He broke his wrist and leg. Claiming the stairs were negligently maintained, the Beebes filed a negligence action against Ms. Moses and her husband. The matter proceeded to trial. At the close of the case, the trial court determined that Mr. Beebe was a social guest at the time he was injured and instructed the jury accordingly. The jury returned a verdict in favor of the Moseses. This appeal follows.

The Beebes contend that the trial court erred by determining as a matter of law that Mr. Beebe was a social guest of the Moseses at the time he was injured. They claim he was there for a business purpose, i.e., the Tupperware party; Ms. Moses received an economic benefit from the party; and any social purpose for the gathering was merely incidental to the primary purpose of buying Tupperware. When the facts regarding a visitor’s entry onto property are undisputed, the visitor’s legal status as invitee, licensee, or trespasser is indeed a question of law. Ford v. Red Lion Inns, 67 Wn.

App. 766, 769, 840 P.2d 198 (1992), review denied, 120 Wn.2d 1029 (1993). But when the facts are disputed, the question is one for the jury to decide. Egede-Nissen v. Crystal Mountain, Inc., 93 Wn.2d 127, 135-36, 606 P.2d 1214 (1980). Washington has adopted the definition of an invitee in the Restatement (Second) of Torts § 332 (1965). McKinnon v. Wash. Fed. Sav. & Loan Ass’n, 68 Wn.2d 644, 650, 414 P.2d 773 (1966).

A business invitee is defined as “a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.” Restatement (Second) of Torts § 332 (1965); Younce v. Ferguson, 106 Wn.2d 658, 667, 724 P.2d 991 (1986); McKinnon, 68 Wn.2d at 650.

In contrast, “[a] licensee is defined as ‘a person who is privileged to enter or remain on land only by virtue of the possessor’s consent.’ ” Younce, 106 Wn.2d at 667 (quoting Restatement (Second) of Torts § 330 (1965)). “A licensee includes a social guest, that is, a person who has been invited but does not meet the legal definition of invitee.” Younce, 106 Wn.2d at 667. The only issue is whether the trial court erred by determining as a matter of law that Mr. Beebe was a social guest.

To decide an entrant’s status, “[t]he ultimate goal is to differentiate (1) an entry made for a business or economic purpose that benefits both entrant and occupier, from (2) an entry made for a purpose that either (

a) benefits only the entrant or (

b) is primarily familial or social.” Thompson v. Katzer, 86 Wn. App. 280, 286, 936 P.2d 421, review denied, 133 Wn.2d 1020 (1997); see Swanson v. McKain, 59 Wn. App. 303, 308-09, 796 P.2d 1291 (1990), review denied, 116 Wn.2d 1007 (1991). The Beebes presented testimony that they were at the Moseses’ home solely because they were invited to attend the Tupperware party. They even bought Tupperware there. Ms. Moses received a dollar amount of free product based on the level of sales generated at the party she was hosting. On the other hand, the Moseses point out that Ms. Bull, not Ms.

Moses, was the person selling the Tupperware as she was the only one authorized to do so. They claim Ms. Moses received only a nominal and incidental benefit for hosting the party, which was primarily social. But determining whether Mr. Beebe’s entry was made for a business or economic purpose that benefited both him and Ms. Moses or whether his entry was primarily familial or social or was made for a purpose that only benefited him requires factual resolution by the jury. Egede-Nissen, 93 Wn.2d at 136. The trial court erred when it found as a matter of law that Mr.

Beebe was a social guest because that determination depended on the facts to be found by the jury. A new trial is required. The judgment is reversed and the case remanded for new trial. Kurtz, J., concurs.