Broadhurst v. Davis

• Decision Date: 24 February 1970
• Docket Number: No. 2,No. 869A150,869A150,2
• Parties: Ruth BROADHURST, Appellant, v. Clarence W. DAVIS, Appellee
• Court: Indiana Appellate Court

Page 544

255 N.E.2d 544

146 Ind.App. 329

Ruth BROADHURST, Appellant, v. Clarence W. DAVIS, Appellee.

No. 869A150.

Appellate Court of Indiana, Division No. 2.

Feb. 24, 1970.

William H. Wagner, Chester, Clifford, Hoeppner & Houran, Valparaiso, for appellant.

Philip M. Cagen, E. S. McCray, William T. Enslen, Valparaiso, for appellee.

PFAFF, Judge.

The appellee, an invitee independent contractor specializing in the installation of dry wallboard, sustained personal injuries in the appellant's tri-level home which was, at the time of the injuries, under construction. The appellee had been retained by appellant Broadhurst as one of several independent contractors to perform construction services on the home. Appellee's duties consisted of the removal of scrap material from the premises and the erection of the dry wallboard. Appellee first entered upon the premises to ascertain when he could start his work. Subsequent to this first visit, appellee returned to appellant's home for the purpose of removing scrap material. As the appellee attempted to go from the ground level to the second level of the home, the temporary stairway connecting these two levels collapsed and the appellee and the temporary stairway fell into the basement, thereby causing the injuries complained of.

Plaintiff-appellee's action for personal injuries charged the defendant-appellant with negligence in failing to provide a reasonably safe place to work and also alleged that the stairway collapsed because it was negligently fastened by only one nail.

Trial to the court resulted in a judgment in favor of the plaintiff-appellee and an award of damages in the amount of $6,500.00. Appellant's motion for a new trial was overruled and this action is assigned as error.

Appellant's argument is confined to two propositions: That liability for failure of the temporary stairway should fall upon one Arthur Ensign, another independent contractor whose employee constructed the temporary stairway; and that there was no evidence that the appellant knew or in the exercise of reasonable care should have known of the defective stairway. The plaintiff-appellee throughout these proceedings has maintained this action on the theory that where the owner retains possession and control over a place where work is to be done, the owner must exercise reasonable care to see that the premises are safe. Implied in the appellee's theory of recovery is the assertion that the owner of the premises has a positive and active duty to inspect, and that appellant's breach of this duty manifested itself in the defective stairway, which was the proximate cause of appellee's injury.

The general rule as to the degree of care owed invitees is best stated by Prosser on Torts (3rd Ed.), § 61, p. 402:

'The occupier is not an insurer of the safety of invitees, and his duty is only to exercise reasonable care for their protection. But the obligation of reasonable care is a full one, applicable in all respects, and extending to everything that threatens the invitee with an unreasonable risk of harm. The occupier must not only use care not to injure the visitor by negligent activities, and warn him of latent dangers of which the occuiper knows, but he must also inspect the premises to discover possible dangerous conditions of which he does not know, and take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement or use. The obligation extends to the original construction of the premises, where it results in a dangerous condition. The fact that the premises are open to the public must be taken into account, and will call for greater care than in the case of a visitor at a private home. If the presence of children is to be expected, their meddling propensities must be anticipated; and the principle of 'attractive nuisance' applies to child invitees no less than to trespassers.

'On the other hand there is no liability for harm resulting from conditions from which no unreasonable risk was to be anticipated, or those which the occupier did not know and could not have discovered with reasonable care. The mere existence of a defect or danger is not enough to establish liability, unless it is shown to be of such a character or of such duration that the jury may reasonably conclude that due care would have discovered it.

'Likewise, in the usual case, there is no obligation to protect the invitee against dangers which are known to him, or which are so obvious and apparent to him that he may reasonably be expected to discover them. Against such conditions it may normally be expected that the visitor will protect himself. It is for this reason that it is so frequently held that reasonable care requires nothing more than a warning of the danger. But this is certainly not a fixed rule, and all of the circumstances must be taken into account. In any case where the occupier, as a reasonable man, should anticipate an unreasonable risk of harm to the invitee notwithstanding his knowledge, warning, or the obvious nature of the condition, something more in the way of precautions may be required. This is true, for example, where there is reason to expect that the invitee's attention will be distracted, as by goods on display, or that after lapse of time he may forget the existence...