Burch v. Peterson

• Jurisdiction: Oregon
• Parties: Henry R. BURCH, Plaintiff-Appellant, v. Edwin A. PETERSON and Lora Peterson, Defendants-Respondents.
• Citation: Burch v. Peterson, 207 Or. 232, 295 P.2d 868 (Or. 1956)
• Court: Oregon Supreme Court
• Decision Date: 11 April 1956

Page 868

295 P.2d 868

207 Or. 232

Henry R. BURCH, Plaintiff-Appellant, v. Edwin A. PETERSON and Lora Peterson, Defendants-Respondents.

Supreme Court of Oregon, Department 2.

Argued and Submitted March 28, 1956.

Decided April 11, 1956.

E. B. Sahlstrom, Eugene, for appellant. On the brief were Thompson & Sahlstrom, Eugene.

John E. Jaqua, Eugene, for respondents. On the brief were Thwing, Jaqua & O'Reilly, Eugene.

Before WARNER, C. J., and TOOZE, LUSK and BRAND, JJ.

WARNER, Chief Justice.

The plaintiff, Burch, appeals from a judgment of involuntary non-suit.

The complaint alleges that injuries were incurred on the evening of April 2, 1950 at about 8 p. m. while plaintiff was crossing the yard of the defendants Peterson, to enter their home in Eugene, Oregon. He had gone to the Petersons for the sole purpose of spending a social evening playing bridge. With five other persons, who were also friends of the defendants, he approached defendants' house by proceeding down a steep incline, through a rock garden, and down some wooden steps. The plaintiff, who was preceded by some of the others, fell and received a painful injury when one of the steps traversed by him gave way under his weight.

The plaintiff complains that the defendants were negligent in the following particulars: in failing to repair the steps leading to the premises of defendants; in failing to give plaintiff an adequate notice or warning; in failing to provide a safe place for the plaintiff to approach the premises; and in failing to warn him of impending danger. He also alleges that the defendants knew, or with reasonable care could have known, of the unsafe condition which precipitated his mishap.

The defendants admit that the plaintiff came to their home at the time for the purpose of a social evening, but deny all of the plaintiff's allegations of negligence. No one contends that he was a 'business invitee'.

The only issue before us for resolution is the character and extent of the legal duty owed by the defendants Peterson, as hosts, to the plaintiff Burch, as their guest. The amplitude of this obligation is determined by the relationship existing between the parties at the time the accident occurred.

Viewing the evidence in a light most favorable to the plaintiff, we are constrained to hold that as a social guest, Burch was a mere licensee of his hosts. McHenry v. Howells, 1954, 201 Or. 697, 701, 272 P.2d 210; McNamara v. Hall, 38 Wash.2d 864, 233 P.2d 852, 854.

The duty of a host to social guests is well and clearly stated in the McHenry case, supra, where at page 702 of 201 Or., at page 212 of 272 P.2d we said:

'The defendants owed plaintiff the duty to use reasonable care not to injure her through any affirmative or active negligence on their part, as distinguished from passive negligence. They also owed her the duty of not willfully, wantonly, or intentionally inflicting injury upon her.'

The plaintiff argues that '* * * there is no logical reason for allowing a lower duty to persons coming upon the real property of others where there is no element of business relationship present as compared to those situations where the business relationship element is present.'

A satisfactory answer to this contention is found in 38 Am.Jur., Negligence, § 117, quoted with approval in McHenry v. Howells, supra, where the best reason for the rule is said to be because "* * * a host merely offers his premises for enjoyment by his guests with the same security that the host and the members of his family who reside with him have." The same thought is expressed in Biggs v. Bear, 320 Ill.App. 597, 51 N.E.2d 799, 800, in these words:

'* * * not every person invited is an...