Cochran v. Abercrombie, 1287

• Decision Date: 10 February 1960
• Docket Number: No. 1287,1287
• Citation: 118 So.2d 636
• Parties: James P. COCHRAN, Appellant, v. F. Ray ABERCROMBIE, Appellee.
• Court: Florida District Court of Appeals

Page 636

118 So.2d 636

79 A.L.R.2d 986

James P. COCHRAN, Appellant, v. F. Ray ABERCROMBIE, Appellee.

No. 1287.

District Court of Appeal of Florida, Second District.

Feb. 10, 1960.

Rehearing Denied March 16, 1960.

W. Wallace Shafer of Bentley, Shafer, Miller & Sinder, Lakeland, and Gordon F. MacCalla, Winter Haven, for appellant.

M. Craig Massey of Carver, Langston & Massey, Lakeland, for appellee.

SHANNON, Judge.

This is an appeal from a final judgment dismissing the appellant-plaintiff's second amended complaint in an action sounding in tort. Plaintiff's second amended complaint alleges that plaintiff went to the defendant's residence for the purpose of discussing a proposed fishing trip, and while there the defendant requested plaintiff to step over to the carport for the purpose of looking over the motor of defendant's automobile. The defendant raised the hood, and while leaving plaintiff in front of the car observing the motor, which was not then running, the defendant opened the car door and engaged the starter of the car which was in forward gear. The car lurched forward toward the plaintiff, injuring him. The complaint alleged that the defendant's act of starting the motor under these circumstances was done negligently and without warning.

By his final order the trial judge took the position that under the allegations in the complaint the plaintiff was a licensee and that under the case law in Florida the standard of care owed to a licensee is to refrain from wilfully or wantonly causing him injury. As authority the court cited Goldberg v. Straus, Fla., 45 So.2d 883; Stewart v. Texas Co., Fla., 67 So.2d 653, and McNulty v. Hurley, Fla., 97 So.2d 185.

In his brief and on oral argument the plaintiff strongly urges us to reverse this case by distinguishing between active and passive negligence, and he also calls attention to the fact that Florida has not ruled upon this particular phase of the law.

Florida has, as have many other states, frequently set forth the duties owed by the occupier or possessor of property to another who comes on it. As to the duty of the possessor to each class, the case of McNulty v. Hurley, Fla.1957, 97 So.2d 185, 187, states:

'The duty owed by the owner or occupant of premises to each class of persons is also distinct. The duty owed by the owner or occupant to the trespasser is to refrain from committing a wilful or wanton injury against him with the rule being softened after discovery by the landowner of peril to the trespasser. Byers v. Gunn, Fla.1955, 81 So.2d 723.

'The duty owed a licensee is to refrain from wanton negligence or wilful misconduct which would injure him, or to refrain from intentionally exposing him to danger. City of Boca Raton v. Mattef, Fla.1956, 91 So.2d 644. There may be a further duty to the licensee to warn him of a defect or condition known to the owner or occupant to be dangerous when such danger is not open to ordinary observation by the licensee. Goldberg v. Straus, Fla.1950, 45 So.2d 883; 65 C.J.S. Negligence § 35g; Prosser, Torts, Sec. 77, p. 450; Restatement, Torts, Sec. 342, Comment d.

'A greater duty is owed to an invitee than to either of the other class of persons above mentioned. The owner of occupant owes an invitee the duty of keeping the premises in a reasonably safe condition, and, as plaintiff contends, also to guard against subjecting such person to dangers of which the owner or occupant is cognizant or might reasonably have foreseen. First Federal Sav. & Loan Ass'n of Miami v. Wylie, Fla.1950, 46 So.2d 396 and Messner v. Webb's City, Inc., Fla.1952, 62 So.2d 66.'

A 'licensee' has been broadly defined as 'a person who enters upon the property of another for his own convenience, pleasure, or benefit.' Stewart v. Texas Co., Fla.1953, 67 So.2d 653, 654. 'An invitee is normally considered to be one who enters upon the premises of another for purposes connected with the business of the owner or occupant of the premises.' City of Baca Raton v. Mattef, Fla.1956, 91 So.2d 644, 647. That the plaintiff was a licensee on the facts stated has been determined by the trial court, and this, we think, is well supported by the cases collected in 25 A.L.R.2d 598, notwithstanding the fact that at the time of his injury he was carrying out a request by the defendant. The courts of various jurisdictions have held that incidental motives of the visit of a social guest, other than purely social ones, will not be sufficient to characterize the visitor as an 'invitee.' These cases also indicate that minor services performed by the guest for the host during the visit will not be sufficient to change his status from licensee to invitee or business visitor.

Of the three cases cited by the trial court in the final judgment, all involved primarily the condition of the premises as opposed to a negligent act by the possessor. In Goldberg v. Straus, supra, the plaintiff was injured when she stepped in a hole in the possessor's yard. In her complaint she charged that the possessor should have known of the hole and that he was negligent in allowing it to remain open. Our Supreme Court, in holding that the complaint failed to state a cause of action, did so on the ground that the plaintiff was a licensee and should take the premises as she found them, subject to the exception that the host will be held liable for injuries 'caused to his guest by a natural or artificial condition on the premises, where the host has actual knowledge of the condition and realizes that it involves an unreasonable risk to his guest and has reason to believe that the guest will not discover the condition or realize the risk, by the exercise of reasonable care.'

Stewart v. Texas Co., supra,...