Cameron v. Abatiell

• Citation: 127 Vt. 111,241 A.2d 310
• Decision Date: 02 April 1968
• Docket Number: No. 1095,1095
• Parties: Robert E. CAMERON v. Clement J. and Stella M. ABATIELL, Albert E. MacPhail, d. b. a., Pyrofax Gas Service, Pyrofax Gas Corporation.
• Court: Vermont Supreme Court

Page 310

241 A.2d 310

127 Vt. 111

Robert E. CAMERON v. Clement J. and Stella M. ABATIELL, Albert E. MacPhail, d. b a., Pyrofax Gas Service, Pyrofax Gas Corporation.

No. 1095.

Supreme Court of Vermont.

April 2, 1968.

Bloomer & Bloomer, Rutland, for plaintiff.

Ryan, Smith & Carbine, Rutland, for Clement J. and Stella M. Abatiell.

Webber & Costello, Rutland, for Albert E. MacPhail.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

KEYSER, Justice.

The defendants are seeking to disclaim responsibility for the safety of a public officer performing a regular and routine service for the protection of their property. He was checking the security of locks on means of ordinary access to the premises. This checking was being made at the rear entrance door which is reached by a set of wooden steps with no suggestion that usage was barred or forbidden.

At the close of the plaintiff's case the court, on motions of the defendants, directed a verdict for each defendant. Plaintiff appealed from the judgments entered on the verdict. The grounds of the motions were threefold, namely, that the plaintiff (1) was a licensee, (2) was guilty of contributory negligence as a matter of law and (3) assumed the risk.

The evidence taken in the light most favorable to the plaintiff shows the operative facts stated below.

Defendants Abatiell have owned a three-story business building in the City of Rutland located at 42-44 Center Street for about thirty-nine years. They have operated a beauty shop at 44 Center Street for some twenty-five years. The store on street level at 42 Center Street was occupied by Sears, Roebuck and Company for over twenty years until 1963. On September 1, 1963, defendant Pyrofax Gas Corporation leased the premises and were in possession on December 19, 1964 when plaintiff suffered his injury. Defendant Pyrofax Gas Service conducted its business at the same location.

The rear entrance door to the Pyrofax store is six feet above ground level. A series of nine steps (without risers) lead up to a landing in front of the door. To defendants Abatiells' knowledge and without their objection, this entrance was used over an extended period by the employees of both Sears and Pyrofax. There is also a fire escape which terminates on the landing.

At the time Pyrofax leased the premises there were several of the treads on the back steps broken. Defendants Abatiell had these replaced and after plaintiff's accident they had the steps fixed by a carpenter.

The plaintiff has been a police officer of the city for about fifteen years. Plaintiff's beat for about two years included Center Street. At the time of his accident he was working the three to eleven P.M. beat. His duties included checking for fires and the front and rear doors on his beat at night. On December 19, 1964, the plaintiff checked the rear door at 42 Center Street about seven P.M. In descending the steps the fourth step from the bottom broke. This caused plaintiff to fall to the ground resulting in an injury to his back. He did not notice anything wrong with the steps except they and a hand rail had been wobbly for some time. The weather was clear and the steps were not icy or slippery. As he came down the steps he was looking to see if there were any fires. He did not use his flashlight or the hand rail while descending the steps. Checking the doors on his beat was a part of plaintiff's duty and not done for any purpose of his own.

Although plaintiff was never asked by the defendants to check the doors, defendant Abatiell knew the police did check the rear doors to their establishment and had seen them do so. On one occasion the police had called Mrs. Abatiell to tell her that a door was open at their beauty shop. Mr. Abatiell also knew the police 'did check back doors.'

In November 1963, another police officer had found the rear door of the Pyrofax store unlocked on two occasions. Each time he went inside and left a note on a desk to this effect. There was one instance when the police notified an employee of Pyrofax by telephone on a Sunday morning that the front door was unlocked.

The first and controlling issue is the determination of the plaintiff's suatus as an entrant on the premises in question.

The general rule is that in the absence of a statute or municipal ordinance, a policeman who comes upon premises in the discharge of his duty, but without an express or implied invitation to enter, is a licensee. 38 Am.Jur., Negligence, § 124; 65 C.J.S. Negligence § 63(111).

The judicial approach to the problem of balancing interests of the occupier against the interests of a person coming on the remises was formulated during the course of the nineteenth century and still provides the point of departure for modern reasoning. The legal formula generally divides persons entering upon land of another into three classes, viz.: trespassers, licensees or invitees (business visitors), and accordingly graduates the duties owed by the occupier of the land. 2 Harper and James, The Law of Torts (1956), 1430, § 27.1.

In one particular (in the law of tort) the weight of public opinion has definitely changed and inroads into the traditional immunity of the possessor of land has occurred. The English common law from which our American law is derived was part and parcel of a social system of which the landowners were the backbone. It was inevitable that in such an atmosphere supreme importance should be attached to proprietary interests. Bohlen, Fifty Years of Torts, 50 Harv.L.Rev. 725, 735. 'Even before 1886 the wind had somewhat changed. The individual citizen's interest in his personal safety, in which the state also soon came to be recognized as having an interest, began to be given a sufficient importance to deprive landowners of some of their immunities.' Id. at page 736. In Elliman v. Gombar, 86 Ohio App. 352, 91 N.E.2d 801, 803, the court held:

'The trend of the decisions among the various states is to divide those, whose right to enter an owner's premises is derived solely from the owner's consent, into several classes:

'First, those who come upon his premises by his invitation, express or implied, for the transaction of business, or for any other purpose beneficial to him. Invitation may be implied in various ways; for instance, when he enters the premises in the interest or for the benefit of the owners or occupants, as in the performance of a duty, etc.

'Second, those commonly called bare licensees, being those to whom he accords his consent out of mere grace, their visit being for their own purely personal purpose.'

Admittedly, plaintiff is not, nor could he be, a trespasser. The defendants contend plaintiff was a gratuitous licensee while the plaintiff maintains he was an invitee or business visitor. The defendants argue that plaintiff was a gratuitous licensee since he was on the premises under authority of law, not by an express or implied invitation, and there were no business dealings between them. The fact that plaintiff was acting as a police officer is not dispositive of the question of liability.

In Robillard v. Tillotson, 118 Vt. 294, 299, 108 A.2d 524, 527, we said, 'To give a person the standing of a business visitor it must appear that his purpose for entering the premises is one of interest or advantage to the occupant,' and that '* * * a license is inferred where the object is the mere pleasure or benefit of the person using it.' See also Manley v. Haus, 113 Vt. 217, 221, 32 A.2d 668; Coburn v. Village of Swanton, 94 Vt. 168, 172, 109 A. 854.

The history of the law on the subject of landowners and licensees shows a tendency to whittle away a rule which no longer conforms to public opinion. The course of judicial decisions has been toward broadening the class of invitees or business guests. 2 Harper and James, supra, 1478, § 27.12. See Anno. 86 A.L.R.2d 1206, § 2.

The majority of the Supreme Court of Illinois in Dini v. Naiditch, 20 Ill.2d 406, 170 N.E.2d 881, at page 885, 86 A.L.R.2d 1184, stated that 'since the common-law rule labelling firemen as licensees is but an illogical anachronism, originating in a vastly different social order, and pock-marked by judicial refinements, it should not be perpetrated in the name of 'stare decisis," and that "stare decisis' ought not to be the excuse for decision where reason is lacking.' The Illinois court held that a fireman (and by inference, a policeman) performing his duty on private property is an invitee, not a mere licensee, thus holding the property owner to the duty of reasonable care. The court went on to say that 'this legal fiction that firemen are licensees to whom no duty of reasonable care is owed is without any logical foundation,' citing Harper, Torts, § 96; Prosser, 26 Minn.L.Rev., 573; 35 Mich.L.Rev., 1157.

In Meiers v. Fred Koch Brewery, 229 N.Y. 10, 127 N.E. 491, 13 A.L.R. 633, the court allowed the plaintiff, a fireman, to recover for injuries caused when he stepped into an unguarded coalhole at night in defendant's driveway intended for use to reach its building which was on fire. Although the court did not define plaintiff's status, it said he was not a licensee or a trespasser. The court held that an owner of premises owes to a fireman entering upon the premises in discharge of his duty, over a means of access prepared for those entitled to enter, a duty to keep the means of access in a reasonably safe condition. Inc., 4 A.D.2d 276, 164 N.Y.S.2d Inc., 4 A.d.2d 276, 164 N.Y.S.2d 276, where a policeman had been summoned by the night watchman of a restaurant to investigate a prowler in the rear of the restaurant, the court held that whether the policeman's entrance was permitted or invited, he was neither an invitee nor a licensee, but sui generis.

The Supreme Court of Minnesota in Shypulski v. Waldorf Paper Products Co., (1951) 232 Minn. 394, 45 N.W.2d 549, 550, stated that 'firemen, policemen, and similar personnel have a status sui...