Corcoran v. Jacovino

• Decision Date: 09 July 1971
• Citation: 290 A.2d 225,161 Conn. 462
• Court: Connecticut Supreme Court
• Parties: Barbara CORCORAN et al. v. Philip C. JACOVINO.

Page 225

290 A.2d 225

161 Conn. 462

Barbara CORCORAN et al. v. Philip C. JACOVINO.

Supreme Court of Connecticut.

July 9, 1971.

Richard A. Silver, Stamford, for appellants (plaintiffs).

Richard P. Gilardi, Stratford, for appellee (defendant).

Before HOUSE, C.J., and THIM, RYAN, SHAPIRO and LOISELLE, JJ.

LOISELLE, Justice.

The named plaintiff, a seventeen-year-old girl, hereinafter referred to as Barbara, brought this action by her father and next friend against the defendant. Her father sought in the same action to recover for medical and hospital expenses which he had incurred on her behalf. The complaint alleged personal injuries to Barbara incurred on October 16, 1964, and seeks recovery predicated on allegations of negligence by the defendant. In his answer the defendant denied these allegations and pleaded a special defense of contributory negligence.

The plaintiffs claim that the trial court committed error in denying their motion to set aside the verdict which had been directed for the defendant. The question presented is whether the trial court abused its legal discretion in denying the motion to set aside the verdict. Akers v. Singer, 158 Conn. 29, 32, 255 A.2d 858; Brooks v. Singer, 147 Conn. 719, 158 A.2d 745. Since the verdict was directed, the question presented is, in essence, whether the direction of the verdict was proper. Directed verdicts are not favored and should be granted only when the jury could not reasonably and legally reach any other conclusion. Lombardi v. J. A. Bergren Dairy Farms, Inc., 153 Conn. 19, 23, 213 A.2d 449; Santor v. Balnis, 151 Conn. 434, 435, 199 A.2d 2. As the verdict was directed for the defendant, we must examine the evidence in the light most favorable to the plaintiffs. Iannotti v. Grand Union Co., 158 Conn. 614, 615, 259 A.2d 634; Lombardi v. J. A. Bergren Dairy Farms, Inc., supra.

The evidence taken in the light most favorable to the plaintiffs was as follows. On October 16, 1964, the defendant owned and operated a service station on Park Avenue in Bridgeport and employed one Harold Piskura, hereinaftr referred to as Harold. At some time previously, the defendant had given Harold a key to the service station so that he could open and close the station as necessary. Harold kept his own car in the bay area of the station and often stayed after the station closed in order to work on his car, with the defendant's knowledge and permission. When he was not working Harold, with the defendant's knowledge, met with his friends and the defendant's friends at the station and such meetings were described as in the nature of a 'country store crowd.'

On October 16, 1964, at about midnight, on the way back from watching a football game with Barbara, he stopped at the defendant's service station to pick up his jacket, which he had left there previously. The station was closed and Harold entered the station with Barbara. At that time a couple of lights on the gas pumps in front of the station and a fluorescent bulb on the back wall of the bay area were lighted. Barbara entered the station with Harold because he did not want her to remain outside the station at that time of the night while he was getting his jacket.

They entered the office area, then went into the bay area, and she followed him to the end of the service area where he picked up his jacket, which was on his car. They walked back toward the office, side by side, with his left hand on her left shoulder and, while walking her toward the opening into the office area of the service station, he guided her into an open grease pit where she fell and sustained injuries.

At the time of her fall there was a car partially over the grease pit, but there was an open space of approximately two to two and one-half feet between the rear of the car and the edge of the grease pit and approximately two to three feet of space between the end of the grease pit and the outer wall or door of the bay area of the station. The area where Barbara fell was not lighted.

The extent of the duty which the defendant owed to Barbara depends on her status at the time of her injury. The plaintiffs contend that she was an invitee, and the defendant that she was at most a licensee. Invitees fall into certain general categories. A public invitee 'is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.' Restatement (Second), 2 Torts § 332. A business invitee 'is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.' Restatement (Second), 2 Torts § 332. Section 52-557a of the General Statutes, which provides that '(t)he standard of care owed to a social invitee shall be the same as the standard of care owed to a business invitee', in effect recognizes a third kind of invitee, namely, the social invitee. The distinction between one who is an invitee and one who is merely a licensee turns largely on whether the visitor has received an invitation, as opposed to permission, from the possessor of land to enter the land or remain on the land. Although an invitation in itself does not establish the status of an invitee, it is essential to it. Mere permission, as distinguished from invitation, is sufficient to make the visitor a licensee but it does not make him an invitee. Restatement (Second), 2 Torts § 332, comment b.

In the present case, the aforementioned evidence does not show that Barbara was either a member of the public invited to enter or remain on the premises by the defendant for a purpose for which the premises were held open to the public or that she was a person invited to enter or remain on the premises by the defendant for a purpose connected with the business of the defendant, and this evidence does not show that Barbara was a social guest of the defendant, nor that the purpose of Barbara's visit involved some economic or business benefit to the defendant. The evidence simply shows that Barbara was a social guest of the defendant's employee Harold.

There is no decision by this court, or statute, which for the purpose of determining the liability of an employer deals directly with the question of the status of an employee's social guest on the premises of the employer. ¹ The general rule, however, is that such a guest is considered to be at most a licensee. See Roadman v. C. E. Johnson Motor Sales, 210 Minn. 59, 297 N.W. 166; Graves v. Massey, 227 Miss. 848, 87 So.2d 270; Handleman v. Cox, 39 N.J. 95, 187 A.2d 708; Akerson v. D. C. Bates & Sons, Inc., 180 Or. 224, 174 P.2d 953; Hagan v. Delaware River Steel Co., 240 Pa. 222, 87 A. 574; see, generally, note, 78 A.L.R.2d 107. In short, Barbara was at most a licensee at the time of her injury.

A licensee coming on the premises of a possessor of land must take them as he finds them. Hennessey v. Hennessey, 145 Conn. 211, 213, 140 A.2d 473; Laube v. Stevenson, 137 Conn. 469, 474, 78 A.2d 693. 'A possessor of land is liable for bodily harm caused to a gratuitous licensee by a natural or artificial condition thereon if, but only if, he: (a) knows of the condition, realizes that it involves an unreasonable risk to the licensee and has reason to believe that the licensee will not discover the condition or relize the risk, and (b) invites or permits the licensee to enter or remain on the land, without exercising reasonable care (1) to make the condition reasonably safe, or (2) to warn the licensee of the condition and the risk involved therein.' Dougherty v. Graham, 161 Conn. 248, 251, 287 A.2d 382; see Bears v. Hovey, 159 Conn. 358, 360-361, 269 A.2d 77; Hennessey v. Hennessey, supra; Lubenow v. Cook, 137 Conn. 611, 613, 79 A.2d 826; Laube v. Stevenson, supra; Restatement, 2 Torts § 343.

Although the measure of duty which the defendant owed Barbara was that applicable to a licensee, such duty did not arise unless Barbara's presence on the premises became known to the defendant. The knowledge must have actual or the equivalent to actual knowledge. The duty which a licensor owes to a licensee on the licensor's premises does not arise where there is no actual knowledge on the part of the licensor of the licensee's presence or where there are no circumstances from which such knowledge could be imputed to the licensor. See Haffey v. Lemieux, 154 Conn. 185, 189, 224 A.2d 551; Lubenow v. Cook, supra, 137 Conn. 614, 79 A.2d 826; Ward v. Avery, 113 Conn. 394, 397, 155 A. 502. Here, it is undisputed that the defendant had no actual knowledge of the presence of Barbara in the service station at the time she was injured.

There remains the question whether knowledge of Barbara's presence on the premises of the service station at the time of her injury could be imputed to the defendant.

There was nothing in the evidence which would justify a conclusion that when Harold entered the service station he was acting within the scope of his employment or in furtherance of the interests of the defendant. Nor would the evidence justify a conclusion that he was action as the defendant's agent. See MacKay v. Aetna Life Ins. Co., 118 Conn. 538, 550, 173 A. 783; Resnik v. Morganstern, 100 Conn. 38, 43, 122 A. 910; 3 Am.Jur.2d, Agency, § 275. Consequently, Harold's knowledge of the presence of Barbara on the premises could not be imputed to the defendant.

Nor does Barbara come within the rule that actual knowledge need not be shown provided it can be established that the licensor could reasonably anticipate the licensee's presence at the time and place in question. See Haffey v. Lemieux, supra; Olderman v. Bridgeport-City Trust Co., 125 Conn. 177, 182, 4 A.2d 646; Meyer v. Pleshkopf, 251 App.Div. 166, 167, 295 N.Y.S. 341, aff'd, 277 N.Y. 576, 13 N.E.2d 777.

The evidence presented in this case, viewed in the most favorable light for Barbara, as it must be by reason of the directed verdict for the defendant, leaves no...