Bradshaw v. Minter

• Decision Date: 10 September 1965
• Citation: 206 Va. 450,143 S.E.2d 827
• Court: Virginia Supreme Court
• Parties: Nellie BRADSHAW v. Melvin J. MINTER.

Page 827

143 S.E.2d 827

206 Va. 450

Nellie BRADSHAW v. Melvin J. MINTER.

Supreme Court of Appeals of Virginia.

Sept. 10, 1965.

Israel Steingold, Norfolk, (James M. Hubbard, Steingold, Steingold & Chovitz, Norfolk, on brief), for plaintiff in error.

E. L. Ryan, Jr., Norfolk, (White, Ryan & Reynolds, Norfolk, on brief), for defendant in error.

Before EGGLESTON, C. J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO, and GORDON, JJ.

EGGLESTON, Chief Justice.

Nellie Bradshaw, sometimes hereinafter called the plaintiff, while a social guest of Melvin J. Minter at the latter's home, was injured when she fell from a saddle horse owned by Minter. She filed a motion for judgment against him to recover damages for her injuries, alleging that he was 'guilty of negligence' which proximately caused her injuries in that he knew that the horse was 'nervous, unbroken or wild in nature and unfit for normal riding purposes' and yet invited her to ride the animal without warning her of its 'dangerous propensities.'

At a trial before a jury, at the instance of the defendant the lower court ruled and instructed the jury that the plaintiff was not entitled to recover of the defendant unless she proved by a preponderance of the evidence that he was guilty of 'gross negligence' which proximately caused her injuries. The trial resulted in a verdict and judgment for the defendant. We granted the plaintiff a writ of error.

In her assignments of error the main contention of the plaintiff is that the lower court erred in holding that in order for her to prevail in her suit she was required to prove that her injuries were proximately caused by his 'gross negligence' rather than by his 'ordinary negligence.' The other assignments of error relate to the court's rulings on the admission of evidence.

On April 8, 1962, Mrs. Bradshaw, her husband and their three children were social guests in the Minter home, as they had been on previous occasions. After having talked awhile, Minter took two of the children for a short ride with him on his saddle horse, 'Buckshot.' Upon their safe return, according to the testimony of Mrs. Bradshaw and that of her husband, Minter invited her to ride and she accepted the invitation. According to Minter, Mrs. Bradshaw requested that she he allowed to ride and he consented. At any rate, while Minter held the reins, Mrs. Bradshaw mounted the horse. According to her testimony, as soon as Minter had turned the reins over to her the horse suddenly 'took off' at a rapid rate, she was unable to control it or hold her seat in the saddle, and fell to the ground and was injured.

Mrs. Bradshaw testified that she had never had any lessons in riding and had only been on a horse 'about two or possibly three times' when she was about twelve or thirteen years old. She further testified that before mounting the horse on this occasion, Minter did not ask her about her previous experience in riding. Furthermore, she, as well as her husband, said that Minter gave her no directions as to how she should manage the horse nor told her of its characteristics.

While Minter agreed that Mrs. Bradshaw's previous riding experience was not discussed, he said that he told her that the horse was 'neck-reined,' would run if the reins were lifted, and that she should 'hold the reins low' to prevent its running. Minter further testified that when he released the reins to Mrs. Bradshaw she lifted them 'above her head' which incuced the horse to run. According to his testimony, the horse had gone 'about fifty yards' and was making a normal turn when Mrs. Bradshaw fell from the saddle.

Minter had purchased the horse in August, 1961, for his fourteen-year-old daughter. She had ridden the horse frequently during the past fifteen months without incident, except on one occasion when it 'ran away' with her while she was racing.

The evidence is undisputed that the horse was gentle and not mean or vicious. But Minter admitted that he knew it was 'spirited,' 'liked to run,' and would run if the rider 'lifted the reins.' Indeed, he said that if the rider 'held the reins high,' this was a 'signal' for the horse to run.

Ronald E. Dudley, to whom Minter later sold the horse, testified that it was a 'highstrung, nervous animal, and was not a 'good horse' to be ridden by an inexperienced woman.

This brings us to the main issue in the case--the standard of care owed by the defendant, Minter, to the plaintiff, Mrs. Bradshaw, who was a social guest on his premises at the time of the accident. While we have not previously dealt with the question, the prevailing common-law view is that 'a social guest, however cordially he may have been invited and urged to come, is not in law an invitee, but is nothing more than a licensee, to whom the possessor [of land] owes no duty of inspection and affirmative care to make the premises safe for his visit.' Prosser, Law of Torts, 2d Ed., § 77, p. 447. As is said in 2 Harper & James, The Law of Torts, § 27.11, p. 1477, the social guest 'is an invitee who is not an invitee' and 'the great weight of Anglo-American authority classifies him as a bare licensee, even though he was expressly invited.' See also, 38 Am.Jur., Negligence, § 117, p. 778; Annotation, 25 A. L.R.2d 598; 65 C.J.S., Negligence, § 32b, pp. 487-8; Id., § 43(4)g, p. 519.

Restatement of the Law of Torts, Vol. 2, § 331, p. 896, characterizes a social guest as a 'gratutious licensee.'

The only jurisdictions which have considered the question explicitly and have declined to follow the general rule are Louisiana and Ohio where it is held that a social guest is an invitee. See Alexander v. General Accident Fire & Life Assur. Corp. (La.App.1957), 98 So.2d 730; Scheibel v. Lipton, 156 Ohio St. 308, 102 N.E.2d 453.

In Virginia we have adhered to the general rule that no duty is imposed upon the owner or occupant to keep his premises in a safe and suitable condition for the use of a licensee, and that so far as the condition of the premises is concerned the owner or occupant is only liable for any willful or wanton injury that may be done to him. 13 Mich.Jur., Negligence, § 17, p. 523, and cases there collected. See also, Prosser, Law of Torts, 2d Ed., § 77, p. 445; 38 Am.Jur., Negligence, § 105, p. 767; 65 C.J.S. Negligence § 35a, p. 491.

However, the textwriters and the later cases hold that a different rule applies where a guest is injured by reason of the activities of the host which may constitute active or affirmative negligence as distinguished from passive negligence, that is, the condition of the premises. Where the activities of the host are involved, the test should be one of reasonable care under the circumstances. As is said in Restatement of the Law of Torts, Vol. 2, § 341, p. 929:

'Activities dangerous to licensees.

'A possessor of land is subject to liability to licensees, whether business visitors or gratutious licensees, for bodily harm caused to them by his failure to carry on his activities with reasonable care for their safety, unless the licensees know or from facts known to them, should know of the possessor's activities and of the risk involved therein.'

The principle is thus stated in 2 Harper & James, The Law of Torts, § 27.10, p. 1475:

'There are a good many dicta--mostly in older cases--and some holdings to the effect that the occupier of land owes the bare licensee no greater duty than to refrain from intentional, or willful or wanton, misconduct towards him. 'The prevailing view is to the contrary, however, and it is now generally held that in cases involving injury resulting from active conduct, as distinguished from conditions of the premises, the landowner or possessor may be liable for failure to exercise ordinary care towards a licensee whose presence on the land is known or should reasonably be known to the owner or possessor.' [Quoting from Oettinger v. Stewart, 24 Cal.2d 133, 138, 148 P.2d 19, 22, (156 A.L.R. 1221).]

'* * * At any rate, there is wellnigh universal agreement...