Alexander v. General Acc. Fire & Life Assur. Corp.

• Decision Date: 19 November 1957
• Docket Number: No. 4514,4514
• Citation: 98 So.2d 730
• Parties: Mrs. J. N. ALEXANDER, Plaintiff-Appellant, v. GENERAL ACCIDENT FIRE AND LIFE ASSURANCE CORP., Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 730

98 So.2d 730

Mrs. J. N. ALEXANDER, Plaintiff-Appellant, v. GENERAL ACCIDENT FIRE AND LIFE ASSURANCE CORP., Defendant-Appellee.

No. 4514.

Court of Appeal of Louisiana, First Circuit.

Nov. 19, 1957.

Rehearing Denied Dec. 23, 1957.

Writ of Certiorari Denied Feb. 10, 1958.

Joel B. Dickinson, Baton Rouge, for appellant.

Seale, Kelton & Hayes, Donald V. Organ, Baton Rouge, for appellee.

TATE, Judge.

While a house guest of her son-in-law, plaintiff, a 76-year-old lady, fell and sustained fairly severe injuries. These form the basis for plaintiff's claim by this suit to recover damages from her son-in-law's insurer under a comprehensive personal liability policy. She appeals from adverse judgment dismissing her suit.

The place of plaintiff's fall was upon a 'runner' or rug running the twenty-foot length of a hall in her son-in-law's residence. This carpet was held down at both ends by nailed metal strips. It was not quite wide enough to cover the width of the hall, and left an exposed floor surface of approximately five inches on each side. The rug had a tendency to stretch or give with use, as a result of which it slipped slightly sidewards and became slightly wrinkled near the center, raising small ruffles at the carpet's edges.

The accident occurred when the plaintiff, Mrs. Alexander, either tripped on this wrinkled edge or slipped on the loose rug on her return to the living room from the bathroom. (She did not know what caused her fall.)

Plaintiff's petition alleges that her host was negligent 'in not having said rug securely fastened to the floor'; which alleged negligence was the cause of her injuries. The cause of action thus stated is the negligent maintaining by the host of premises unsafe for his social guest, the plaintiff herein.

At the outset we are faced, in what seems to be a case of first impression in Louisiana, with the necessity of defining the duty with regard to his premises of a host to the social guest whom he has expressly invited. In apparently the only previous Louisiana case involving an action by such a guest against his host for personal injuries caused by an alleged defect in the premises, Crittenden v. Fidelity & Cas. Co., La.App., 83 So.2d 538, our brethren of the Second Circuit without discussion applied the standard of care due to an 'invitee'. Defendant-appellee herein urges that the proper standard of care to apply is that owed to a 'licensee'.

Traditionally the duties of an owner or occupier of land have been graduated according to the status of the persons entering the land, who are classified as 'trespassers', 'licensees', or 'invitees'. These general classifications are subject to many subclassifications and additional gradations of duty, which we will not discuss.

Most broadly, the following are the conventionally accepted distinctions between these classifications and the duties owed by the owner or the occupant of the premises to each:

(1) A trespasser is one who enters the premises without the permission of the occupier or without a legal right to do so; and towards the trespasser no duty exists in most instances except to refrain from willfully or wantonly injuring him.

(2) A licensee is one who enters the premises with the occupier's express or implied permission, but only (according to the conventional description) for his own purposes which are unconnected with the occupant's interests; and to him in addition to the duty owed to a trespasser, is owed the duty of warning the licensee of latent dangers of the premises If actually known by the occupier.

(3) An invitee is a person who goes on the premises with the express or implied invitation of the occupant on the business of the latter or for their mutual advantage; and to him, the duty owed is that of reasonable and ordinary care, which includes the prior discovery of Reasonably discoverable conditions of the premises that may be unreasonably dangerous, and correction thereof or a warning to the invitee of the danger.

See: Mercer v. Tremont & G. Ry. Co., La.App. 2 Cir., 19 So.2d 270, certiorari denied; Mills v. Heidingsfield, La.App. 2 Cir., 192 So. 786; 65 C.J.S. Negligence §§ 23 and 24 (trespassers), §§ 32 and 35 (licensees), §§ 43 and 45 (invitees); 38 Am.Jur. 'Negligence', Sections 96 (invitees), 104 (licensees), 109 (trespassers); 2 Harper & James, The Law of Torts (1956), Sections 27.3 (trespasser), 27.8 and 27.9 (licensee), 27.12 (invitee); Prosser, Torts (2d Ed. 1955), Sections 76 (trespassers), 77 (licensees), and 78 (invitees.)

Most American jurisdictions follow the English law in classifying a social guest as a licensee, rather than as an invitee, on the ground that his presence on the premises is not directed to the economic benefit of his host; the holding then is that the 'host is not liable for an injury sustained by the guest from some defect in the condition of the premises, except as the licensee is needlessly exposed to peril through the failure of the owner or occupant to warn him of (actually known) danger, or by the active negligence of the owner or occupant,' 38 Am.Jur. 'Negligence', Section 117, at p. 778. See 65 C.J.S. Negligence § 35 d, at p. 495, and § 43(4) g, at p. 519; Annotation, Liability for injury to guest in home or similar premises, 25 A.L.R.2d 598.

The reason for the rule is said to be that 'the guest assumes the ordinary risks which attach to the premises' and 'a host merely offers his premises for enjoyment by his guest with the same security that the host and members of his family who reside with him have,' 38 Am.Jur. 778.

Our brethren of the Second Circuit, however, we think correctly stated that the social guest is an invitee, as to whom the duty of the owner of the premises 'is not to insure him against the possibility of accident, but is to exercise reasonable or ordinary care for his safety commensurate with the particular circumstances involved,' Crittenden v. Fidelity & Cas. Co., 83 So.2d 538, at page 540.

In the first place, the arbitrary classification of a social guest as a licensee rather than an invitee has received substantial criticism on the grounds that it is illogical and unrealistic. See, e.g., majority and dissenting opinions, Laube v. Stevenson, 137 Conn. 469, 78 A.2d 693, 25 A.L.R.2d 592; Guilford v. Yale University, 128 Conn. 449, 23 A.2d 917; Scheibel v. Lipton, 156 Ohio St. 308, 102 N.E.2d 453, 455; cf., Prosser, Torts (2d Ed. 1955). See also Pollock, Torts (14th Ed.) at p. 422: 'why in common reason should a person invited for the occupier's pleasure be worse off than one who is about business concerning both?'

Thus, for example, the question is raised, why should a different standard of care be exacted from the host towards the same insurance agent invited one evening to discuss the sale of insurance to the host (in which case, according to the conventional classification, he is a business invitee owed the duty of ordinary care) and another evening for a social visit (when he is merely a licensee, owed only the duty of a warning as to latent defects actually known to the host)? So, if...