Cupita v. Carmel Country Club, Inc.
| Decision Date | 13 April 1960 |
| Docket Number | No. 254,254 |
| Citation | 113 S.E.2d 712,252 N.C. 346 |
| Parties | Joe CUPITA v. CARMEL COUNTRY CLUB, INC. |
| Court | North Carolina Supreme Court |
Grier, Parker, Poe & Thompson, Charlotte, for plaintiff, appellant.
Robinson, Jones & Hewson and Fairley & Hamrick, Charlotte, for defendant, appellee.
Plaintiff on 7 June 1958 was a 31-year-old musician and a member of Buddy Bair's dance orchestra. On this day this orchestra was travelling in a bus, which about 7:00 o'clock p. m. stopped in front of the main entrance of defendant's club building. The members of the orchestra carried their instruments and music from the bus into the club building to play for a dance there that evening. They returned to the bus, got in, and the bus was driven a short distance to a parking area on the club's premises and parked. The orchestra members remained in the bus about one hour, shaving, putting on their band uniforms, etc. The dance was to begin at 9:00 o'clock p. m. About 8:00 o'clock p. m. it was dark, and at that time plaintiff with two members of the orchestra stepped off the bus to go to the club building to set up their instruments and music and get ready for the dance. Plaintiff had never been on the club's grounds before. Travelling on the club's premises in the bus he was not able to get a view of the grounds, because the bus had only four windows and by these windows were bunks and curtains.
When plaintiff stepped off the bus, he saw a gravel road leading to the club building and lights there. He and his two companions began walking down this road to the building and the lights. After they had walked 75 to 100 feet on this road, plaintiff realized they were going to the rear entrance of the building. He then saw the lights at the main entrance, where they had unloaded their instruments. Between him and the main entrance was a lawn of the club. The weather was clear. The lawn was flat and level with no big gullies. The lights at the main and rear entrances gave a dim view of the lawn.
Plaintiff and his two companions started walking to the lights and the main entrance of the club building. Plaintiff was looking on the ground as he walked, and had walked 'perhaps twelve feet,' when he fell in a hole on the lawn. The hole was about a yard in diameter and three or four feet deep. Grass was growing around the edge of the hole, and at the bottom of the hole were some tree roots. Near the hole were some trees and shrubbery, and the shrubbery cast shadows. Plaintiff testified, 'the hole was invisible.' He played at the dance.
After the dance plaintiff went with a flashlight to see the hole in which he fell. He was back again in November 1958. In the area of the hole was the mouth of a drain pipe going under the road. The lawn slopes down from the club building to the road. There was no ditch along the road, no gully. Plaintiff testified on cross-examination:
Plaintiff's presence on the premises of the defendant at the time of his injury as a member of a dance orchestra to provide music for a dance in the club building gave him the status of an invitee. Pafford v. J. A. Jones Construction Co., 217 N.C. 730, 9 S.E.2d 408; Bemont v. Isenhour, 249 N.C. 106, 105 S.E.2d 431; 38 Am.Jur., Negligence, § 100; 65 C.J.S. Negligence § 43(4) b.
Defendant owed plaintiff a positive duty to exercise ordinary care to have its premises in a reasonably safe condition for his safety in using the premises in a manner consistent with the purpose of the invitation, and to give him, when using the premises for such purpose, timely notice and warning of latent or concealed perils in so far as can be ascertained by reasonable inspection and supervision or are known by it and not by him. Defendant is not an insurer of plaintiff's safety on its premises, and in the absence of negligence there is no liability. Williams v. Charles Stores Co., Inc., 209 N.C. 591, 184 S.E. 496; Watkins v. Taylor Furnishing Co., 224 N.C. 674, 31 S.E.2d 917; Ross v. Sterling Drug Store, 225 N.C. 226, 34 S.E.2d 64; Hood v. Queen City Coach Co., 249 N.C. 534, 541, 107 S.E.2d 154, 159; Waters v. Harris, 250 N.C. 701, 110 S.E.2d 283; 65 C.J.S. Negligence § 45a; 38 Am.Jur., Negligence, § 96; Restatement of the Law, Torts, Vol. II, § 340.
This is said in Ellington v. Ricks, 179 N.C. 686, 102 S.E. 510, 511: "The owner or occupant of premises is liable for injuries sustained by persons who have entered lawfully thereon only when the injury results from the use and occupation of that part of the premises which has been designed, adapted, and prepared for the accommodation of such persons.' (20 R.C.L., 67). If an invitee goes 'to out of the way places on the premises, wholly disconnected from and in no way pertaining to the business in hand' and is injured, there is no liability. ( ).'
The owner or person in charge of premises has a duty to keep the premises which are within the scope of the invitation in a reasonably safe condition for an invitee's safety for all uses by an invitee in a manner consistent with the purpose of the invitation, but the owner or person in charge is not bound to keep them in a reasonably safe condition for uses which are outside of the scope and purpose of the invitation, for which the property was not designed, and which could not reasonably have been anticipated, except where he is present and actively cooperates with the invitee in the particular use of the premises. Dickau v. Rafala, 141 Conn. 121, 104 A.2d 214; Leenders v. California Hawaiian Sugar Refining Corp., 59 Cal.App.2d 752, 139 P.2d 987; Tomsky v. Kaczka, 17 N.J. Super. 211, 85 A.2d 809; Augusta Amusements, Inc. v. Powell, 93 Ga.App. 752, 92 S.E.2d 720; 65 C.J.S. Negligence § 49; Restatement of the Law, Torts, Vol. II, § 343(b). Accordingly, where a person has entered on the premises of another under invitation, express or implied, he is bound by that invitation, and if he goes to another place on the premises not covered by the invitation, the owner's duty of care owed to such person as an invitee ceases forthwith, and he becomes a licensee. Palmer v. Boston Penny Sav. Bank, 301 Mass. 540, 17 N.E.2d 899, 120 A.L.R. 633; Loney v. Laramie Auto Co., 36 Wyo. 339, 255 P. 350, 53 A.L.R. 73; Nichols v. Consolidated Dairies, 125 Mont. 460, 239 P.2d 740, 28 A.L.R.2d 1216; Fahey v. Sayer, 9 Terry 457, 48 Del. 457, 106 A.2d 513, 49 A.L.R.2d 353; 65 C.J.S. Negligence § 33; 38 Am. Jur., Negligence, § 100.
This Court in Quantz v. Southern R. Co., 137 N.C. 136, 49 S.E. 79, held that where the public is licensed to pass through a railroad station the railroad company is not liable for injuries sustained by a licensee who falls through a door located 12 feet from the passageway.
In Money v. Travelers' Hotel Co., 174 N.C. 508, 93 S.E. 964, L.R.A.1918B, 493, we held there was no evidence of actionable negligence on the part of the hotel company, where plaintiff's intestate, a licensee in the hotel, went to a guest's room in the hotel at his invitation, and in leaving passed the passenger elevator and...
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...Corp., 59 Cal.App.2d 752, 139 P.2d 987, 989--990(2, 3); Edwards v. Johnson, Ky., 306 S.W.2d 845, 848(8); Cupita v. Carmel Country Club, Inc., 252 N.C. 346, 113 S.E.2d 712, 715(6); Parsons v. Drake, 347 Pa. 247, 32 A.2d 27, 30(9); 65 C.J.S. Negligence § 63(52), pp. 756--757; 38 Am.Jur. Negli......
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...at the hospital, and relies on such cases as Wilson v. Dowtin, 1939, 215 N.C. 547, 2 S.E.2d 576, and Cupita v. Carmel Country Club, Inc., 1960, 252 N.C. 346, 113 S.E.2d 712, in support of its The case of Hamlet v. Troxler, 4 Cir., 1956, 235 F.2d 335, is clear authority for holding that a pe......
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...exceeds his invitation and goes to areas not open to his use, he ceases to be an invitee--he is a mere licensee. Cupita v. Country Club, 252 N.C. 346, 113 S.E.2d 712; Francis v. Cleveland Drug Co., 230 N.C. 753, 55 S.E.2d 499; Wilson v. Dowtin, 215 N.C. 547, 2 S.E.2d 576; Ellis v. Sinclair ......
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