City of Suffolk v. Hewitt

• Decision Date: 09 September 1983
• Docket Number: No. 802041,802041
• Parties: CITY OF SUFFOLK v. Frances B. HEWITT. Record
• Court: Virginia Supreme Court

Page 444

307 S.E.2d 444

226 Va. 20

CITY OF SUFFOLK v. Frances B. HEWITT.

Record No. 802041.

Supreme Court of Virginia.

Sept. 9, 1983.

John J. O'Keefe, III, Chesapeake (Outland, Gray, O'Keefe & Hubbard, Chesapeake, on brief), for appellant.

William R. O'Brien, Virginia Beach (Brydes, Hudgins, Ege, Burt & O'Brien, on brief), for appellee.

Before CARRICO, C.J., and COCHRAN, POFF, COMPTON, THOMPSON, STEPHENSON, RUSSELL and THOMAS, JJ.

COCHRAN, Justice.

In a motion for judgment filed against the City of Suffolk, Frances B. Hewitt sought to recover damages for personal injuries sustained when she fell down steps in a building owned by the City. Hewitt alleged that her injuries were caused by the negligence of the City in maintaining the building and in failing to warn her of its dangerous condition. A jury trial resulted in a verdict in favor of Hewitt in the amount of $25,000; the trial court entered judgment on the verdict.

The City argues on appeal that the trial court erred in ruling that Hewitt was an invitee and in refusing the City's proffered instructions which were based on the theory that Hewitt had exceeded the scope of her invitation, had become a bare licensee or trespasser, and was thus not entitled to the degree of care owed to an invitee. The City further contends, as it did at trial, that there is no evidence that the City was negligent and that the evidence shows as a matter of law that Hewitt's injuries were caused by her negligence in failing to maintain a proper lookout.

After Hewitt's evidence had been presented and the City's motion to strike had been denied, the City introduced evidence, thereby waiving its earlier motion. In accordance with established principles, therefore, we will consider all the relevant evidence. Hargraves v. Commonwealth, 219 Va. 604, 248 S.E.2d 814 (1978).

On January 2, 1979, Hewitt telephoned what was locally known as the V.P.I. Extension Service office to inquire about obtaining part-time employment. An employee told her she could pick up an application the next morning. The office was in an old brick office building owned by the City and located at the intersection of North Main Street and Constance Road in Suffolk. Hewitt, then 58 years of age, parked in the parking lot on the north side of the building between 10:00 a.m. and 11:00 a.m. on January 3, which she described as a "bright, shiny day, and cold." At that time, she saw two men she believed to be dressed in business suits enter a back door of the building.

Leaving her husband in the car, Hewitt walked up the steps from the parking lot and entered the first door on the north side of the building; inside were signs "saying Domestic Court and juvenile something." Realizing that she had entered the wrong door, she withdrew and followed the sidewalk around the back of the building to the next door, which was the same one she had seen the two men enter. This door, she said, was wooden, contained no windows or signs, and appeared "just like the other white door." Hewitt testified, "I opened the door, and it opened to the inside, and I stepped in, and that's it." She continued, "I blacked out and fell." Hewitt said the first step was a "long step." She remembered seeing only a light bulb before she fell down a flight of steps and broke her leg. Other evidence established that the steps led down to the floor of the boiler room where two men were working.

A photograph introduced in evidence by the City showed at the front of the building the main entrance and a sign for the Extension Service office. Asked why she did not go to the front entrance initially, Hewitt explained that when she walked up the steps from the parking lot, "there was no sidewalk going around to the front of the building." A sketch drawn by Thomas Hines, the City's Director of Public Works, tended to support Hewitt's explanation by showing no sidewalk leading from the parking lot to the front entrance. Hewitt acknowledged that she could have gone to the main entrance but said she did not think about doing so after she had seen the two men go in the back.

Hines's sketch of the building showed that the rear sidewalk led first to the juvenile court office on the north side, then to the boiler room on the east end, and then to an Extension Service conference room around the corner. Hines said the other doors were in better condition than the boiler room door, which, however, he said was not dilapidated. Acknowledging that the boiler room door on January 3, 1979, was a plain white wooden door, Hines confirmed that there were no signs on the door or the building identifying the entrance or warning the public not to enter. Hines said the boiler room door was ordinarily kept locked but he and an assistant had entered the room about 9:15 or 9:30 a.m. on January 3 in response to a report of a heating malfunction and did not lock the door after they entered because they were "servicing the unit."

Hines testified there was a six-inch step down from a four-inch wide concrete threshold which supported the door. He estimated the overall drop from the entrance to the level of the furnace to be approximately five feet. The boiler room was illuminated by a single 150-watt incandescent bulb hanging about three feet above the eye level of a person entering the door.

Hines said he and his assistant were at the bottom of the "stair tread, approximately six steps down into this boiler pit, bending over the fire unit that services the boiler," when he was distracted by "the brightness of the door being opened." He looked around and "saw a figure begin to tumble down the steps." He had no time to say anything to Hewitt as she entered the door but he cushioned her fall and rendered assistance.

On a photograph, Hines identified as a coal chute a black rectangular fixture imbedded in the wall near the boiler room door. Hewitt had previously denied seeing this fixture because it was on the section of wall beyond the door and outside her view as she approached from the other side.

The City argues that it was entitled to have instructions granted that would have either required or permitted the jury to find that Hewitt exceeded the scope of her invitation to use the premises and became a bare licensee or a trespasser when she entered the boiler room. In our consideration of this question, of course, we review the evidence in the light most favorable to the City to determine whether the evidence required the giving of the proffered instructions, or any of them.

The City relies upon the principle enunciated in Agricultural Ass'n v. LeCato, 151 Va. 614, 619, 144 S.E. 713, 714 (1928), and approved in Knight v. Moore, 179 Va. 139, 146, 18 S.E.2d 266, 269-70 (1942), that the duty of a property owner to an invitee is coextensive with and limited by the invitation. Hewitt was not invited to enter the boiler room, says the City, and her status as an invitee, therefore, terminated when she went in the door. This argument, however, fails to recognize that the scope of the invitation depends not only upon the place to which the City intended or believed that Hewitt might go, but also upon the areas to which she was impliedly invited to go by the appearance and condition of the property. As we said in Knight, the owner's duty "does not extend to places beyond the invitation and to which the invitee is not reasonably expected to go." 179 Va. at 146, 18 S.E.2d at 270. Conversely, Hewitt remained an invitee if she could be reasonably expected to go in the boiler room door.

In LeCato, we held that the plaintiff not only was invited to enter a fairground but also that "[b]y the placing of seats around ... [a] tree [near a racetrack], he was specifically invited to make use of a seat so provided ...." 151 Va. at 619, 144 S.E. at 714. In Raylass Chain Stores v. DeJarnette, 163 Va. 938, 941-43, 178 S.E. 34, 34-35 (1935), we held that a customer at a retail store who stepped through an open entrance leading to a landing, which was the same dark color as the main floor but six inches lower, and fell down a stairway remained an invitee even though the stairway was located at the rear of the store and led to a basement used only for storage purposes.

The City's reliance on Smith v. Wiley-Hall Motors, 184 Va. 49, 34 S.E.2d 233 (1945), in support of its argument that Hewitt's invitee status ceased when she entered the boiler room, is misplaced. In Smith, the plaintiff entered the reception room of a gas station late at night, entered another door in looking for the bathroom, ascertained that it was too dark for him to discern any objects, groped unsuccessfully along a wall for a light switch, and then stepped forward, stumbled against something, and fell into the grease pit. He had passed close by an attendant on his way into the station but had asked for no directions. We held that the plaintiff was negligent and that his negligence was the sole proximate cause of the accident. The opinion went further, in dictum, to state that the plaintiff's status as an invitee did not extend so far as to include "a reconnoiter which would take one to the grease pit ...." Id. at 53, 34 S.E.2d at 234. Smith must be limited to its peculiar facts insofar as it relates to an invitee exceeding the scope of his invitation.

The present case is quite different from Smith. There is no evidence that Hewitt was ever in close proximity to a City employee before she fell. Unlike the plaintiff in Smith, she had just entered a similar door which she discovered was, in fact, a public entrance. The sidewalk appeared to be provided by the City to facilitate public access and egress to and from the doors to which it led. Moreover, there is evidence that Hewitt's entry and fall were nearly simultaneous; in Smith, the plaintiff proceeded further even after the circumstances advised caution and no longer presented an appearance inducing his continued progress or impliedly inviting that conduct.

Raven Red...