Cook v. Demetrakas

• Decision Date: 13 April 1971
• Docket Number: No. 1108-A,1108-A
• Parties: Walter F. COOK, Jr. v. Anihid M. DEMETRAKAS et al. ppeal.
• Court: Rhode Island Supreme Court

Page 919

275 A.2d 919

108 R.I. 397

Walter F. COOK, Jr. v. Anihid M. DEMETRAKAS et al.

No. 1108-Appeal.

Supreme Court of Rhode Island.

April 13, 1971.

Abedon, Michaelson, Stanzler & Biener, Richard A. Skolnik, Milton Stanzler, Providence, for plaintiff

Francis A. Kelleher, Providence, for City Scrap Metal Co., In., Anihid M. Demetrakas an Gregory G. Demetrakas.

Keenan, Rice, Dolan & Reardon, John F. Dolan, Providence, for Douglas Construction & Supply Corp.

OPINION

PAOLINO, Justice.

This is a civil action in negligence, brought to recover damages for personal injuries sustained by the plaintiff in a fall on September 20, 1967. It is before this court on the plaintiff's appeal from an entry of judgment by a Superior Court justice, who granted the defendants' motions for directed verdicts at the conclusion of all evidence introduced at the trial.

It appears from the evidence that on the evening of September 20, 1967, plaintiff, who is an East Providence police officer, while on patrol duty, responded to a radio call from headquarters which directed him to go to the rear of 30 Summit Street in that city of investigate the larceny of some lumber.

The plaintiff police officer reached 30 Summit Street at 8:30 p.m. He talked to a woman at that location, and she advised him that the lumber had been left in the yard by youths who had run off into the area at the rear of the premises. The plaintiff then began to search the wooded area in pursuit of the youths. During his search, he crossed over the rear property line of the Summit Street premises, and into a heavily wooded area owned by defendants Demetrakas, also owners of City Scrap Metal Company, Inc. ¹ To the west, this wooded area ends in a 20-foot high bank which serves as the rear border of City Scrap's premises at 105 Valley Street. While following a path within the wooded area, plaintiff, not noticing the steep embankment, suddenly fell approximately 20 feet off a portion of the embankment and into the rear of 105 Valley Street.

After his fall, plaintiff was taken to the Rhode Island Hospital for admittance and treatment.

The property at 105 Valley Street was owned by defendants, Gregory G. and Anihid M. Demetrakas, and leased to defendant City Scrap, of which defendants Demetrakas are the sole stockholders and officers. While the topographical nature of the property normally reflects a drop in elevation between Summit and Valley Streets, at that time the slope of the embankment was greatly enhanced, resulting in an abrupt end remaining on the bank located at the rear of defendants Demetrakas' buildings. This condition was due to the construction of an addition to the business premises of City Scrap, and excavation carried on incidental to that construction. No barricades or lights were placed on the land. The defendant Douglas Construction and Supply Corp. was the primary contractor responsible for the erection of the additions to City Scrap, but there is a conflict in evidence as to whether City Scrap or defendant construction company had performed the specific excavation resulting in the sharp embankment.

Suit was brought by plaintiff in the Superior Court against Anihid M. Demetrakas, City Scrap, and Douglas Construction and Supply Corp. for damages. Gregory G. Demetrakas was later added as a party-defendant. The case was heard on the issue of liability only.

At the trial, plaintiff called defendant Gregory G. Demetrakas and he testified that for some time prior to the incident in question, he and other employees of City Scrap had complained to the East Providence Police Department about vandalism and damages to the property of City Scrap in and around the embankment. Mr. Demetrakas also testified that he had previously asked the police to keep a special check on this property including the bank. The police came down to see him in July 1967, and in July and August 1967, Mr. Demetrakas made special requests that police keep an eye on the premises and check the back of the building. However, it is undisputed that on the date of the accident, September 20, 1967, plaintiff's presence on the City Scrap premises was the result of a police call directing plaintiff to proceed to 30 Summit Street and investigate a larceny. This police order was initiated by a telephone request made by an unknown third party.

After the submission of the aforesaid facts and other testimony, all defendants made motions for directed verdicts. The defendants premised their motions on the ground that plaintiff was a licensee when he fell on September 20, 1967, to whom each of the defendants owed no duty as to the condition of the premises, save that either of them should not knowingly let him run on a hidden peril, or wilfully cause him harm. Plaintiff argues, however, that he was on the premises at the invitation, express or implied, of the landowners and their tenant, and that each of the defendants was obliged to use reasonable care so that he might not be injured. The trial justice granted defendants' motions. Upon viewing the evidence in the light most favorable to plaintiff, the trial justice recognized that a jury could find from Mr. Demetrakas' testimony that the latter had expressly invited members of the East Providence Police Department upon the premises in order to suppress or put an end to the condition with which he and his wife and their tenant was plagued. However, he concluded that the jury could not find, on the evidence before them, that on the evening of September 20, 1967, plaintiff was on the premises in response to such invitation. He pointed out that plaintiff was on the Demetrakas' property in the discharge of a public duty while investigating the complaint of a private citizen and that his investigation of that complaint resulted in his fall. He then noted that:

'It would have been otherwise if he had been directed by his superior while patrolling his post to make periodic or occasional checks of the bank area to discover or apprehend those who were causing mischief to the Demetrakas property.'

He concluded that in the circumstances plaintiff was in the same position as the plaintiff in Beehler v. Daniels, Cornell & Co., 19 R.I. 49, 31 A. 582, that his status was that of a licensee, and that on the evidence before them, this was the only conclusion that the jury could come to.

Since the trial justice found no evidence of gross or active negligence, in conjunction with knowledge that plaintiff licensee was on the premises, see Perry v. St. Jean, 100 R.I. 622, 218 A.2d 484, the motions for directed verdicts were granted.

For the reasons which follow, we affirm the judgment entered below.

The issue which we consider here is whether and under what circumstances a policeman who is injured while in the performance of his duties, has a right to sue an occupant or possessor of land for the negligent maintenance of his premises.

The traditional rule, as expoused by this court in Beehler v. Daniels, Cornell & Co., supra (1895), is that in the absence of a statute or an express or implied invitation, a policeman (or fireman) who enters upon premises in the discharge of his duty, has the status of a licensee. 13 A.L.R. 641; 86 A.L.R.2d 1223; 38 Am.Jur. Negligence § 124 (1941); 65 C.J.S. Negligence § 63 (111) (1966). As a licensee, the occupant owes a policeman only the limited duty of not knowingly letting him run upon a hidden peril, or not wilfully causing him harm. Perry v. St. Jean, supra; Pagliaro v. Pezza, 92 R.I. 110, 167 A.2d 139.

The origin of this negligence theory based on plaintiff's status is found in English common law, which with an eye toward protection of the landowners' proprietary interests, apportioned the duties owned by the occupier of the land depending on...