## Facts

- Homeowners hired a contractor under an oral time-and-materials agreement to remodel their house and gave the contractor keys; they did not live there during construction.
- The homeowners regularly visited to monitor progress; the contractor’s employees did not restrict where they could go, and the house was often left open.
- The remodel included removing a spiral staircase from a roughly 5-foot-square opening between the entry area and the basement.
- A contractor employee dismantled the staircase without plans, leaving the area around the opening unsupported.
- The employee covered the opening with plywood and placed a wire barricade around it, without warnings and without fully preventing access.
- The homeowner (eight months pregnant) stepped onto or near the plywood, fell through the opening to the basement floor, and was injured.
- An expert for the plaintiff testified the staircase removal and the barricading fell below industry safety standards.
- A jury returned a verdict for the plaintiff after the trial court instructed that the plaintiff was an invitee as a matter of law and charged only the invitee duty of care.

## Issues

1. Whether the plaintiff’s status on the premises during the contractor’s possession of the home (invitee or licensee) was a question for the jury rather than fixed by the court as a matter of law.
2. Whether instructing the jury that the plaintiff was an invitee, and omitting licensee-status instructions and corresponding duty standards, was prejudicial error requiring reversal.
3. Whether the evidence nevertheless permitted submission of negligence to the jury (as opposed to judgment for the defendant as a matter of law).

## Decision

- Reversed the judgment entered on the plaintiff’s verdict and remanded for further proceedings.
- Held the trial court erred by classifying the plaintiff as an invitee as a matter of law and instructing only on invitee duties.
- Concluded the evidence could support more than one entrant classification, making status (and the applicable duty) a fact question for the jury.
- Declined to dispose of the case in the defendant’s favor as a matter of law; the error concerned the duty standard presented to the jury, not an absence of evidence of negligence.

## Legal Principles

- Entrant status on land (invitee vs. licensee) depends on the purpose of entry and the possessor’s relationship to, and conduct toward, the entrant; it is generally a jury question when reasonable minds could differ.
- Invitees are owed reasonable care to keep premises reasonably safe; licensees are owed a more limited duty (generally to avoid willful or wanton conduct and to warn of hidden dangers known to the possessor and unknown to the licensee).
- A trial court commits reversible error by removing a genuinely disputable entrant-status question from the jury and instructing on an elevated duty standard that may affect the verdict.

## Conclusion

The court ordered a new trial because, during a home renovation where the contractor had control of the premises, the homeowner’s status as invitee or licensee could not be determined as a matter of law on the record, and the jury’s verdict rested on instructions applying only the invitee duty of care.


Palmtag v. Gartner Constr. Co., 513 N.W.2d 495 (Neb. 1994)