Dowd v. Portsmouth Hospital

• Decision Date: 30 September 1963
• Citation: 193 A.2d 788,105 N.H. 53,95 A.L.R.2d 986
• Parties: , 95 A.L.R.2d 986 Helen M. DOWD et al. v. PORTSMOUTH HOSPITAL
• Court: New Hampshire Supreme Court

Page 788

193 A.2d 788

105 N.H. 53, 95 A.L.R.2d 986

Helen M. DOWD et al. v. PORTSMOUTH HOSPITAL

Supreme Court of New Hampshire.

Argued June 5, 1963.

Decided July 9, 1963.

On Rehearing Sept. 30, 1963.

Shaines & Brown, Robert A. Shaines, Portsmouth, for plaintiffs.

Devine, Millimet, McDonough, Stahl & Branch, Shane Devine, Manchester, for defendant.

BLANDIN, Justice.

The defendant claims that the Court erred in failing to instruct the jury as a matter of law that the plaintiff, Helen M. and Oliver Dowd, Jr., were licensees and also in denying motions for non-suits and directed verdicts.

The defendant is a charitable institution, the hospital building having been constructed in 1930, for the purpose of caring for the ill and injured and generally to promote the health and welfare of citizens in the community area. It makes no profit and is supported by income from patient services and by gifts. Since about 1933 the hospital has permitted the District Nursing Association to use certain facilities free of charge for a 'Well Baby Clinic,' wherein babies are brought to a room in the hospital for checkups and examinations by staff physicians of the hospital who are paid by the District Nursing Association. The time of the clinics is advertised in the newspaper by the Association.

On the day in question Helen, a resident of Portsmouth who had visited the clinic several times before for the same purpose of having her child examined, appeared with Oliver, Jr. and entered the hospital. As she was descending a flight of stairs carrying the child over her left shoulder, on her way to the clinic facilities, she slipped and fell, injuring both herself and Oliver, Jr. She claims that the cause of her fall was that the stairs were slippery and that they were improperly maintained and constructed.

The crux of the issue of whether the Court erred in permitting the jury to decide whether the plaintiffs were invitees or licensees depends on what we hold to be the proper test for a determination of the plaintiffs' status. Presently there are two tests to determine what is an invitee. One is the so-called 'economic benefit' test and the other the 'invitation' test. 2 Harper & James, The Law of Torts, s. 27.12, pp. 1478-1479. The former is that there must be an economic advantage--actual or potential--to the occupier of the premises, in the plaintiff's visit, before the latter may become an invitee. In the present case, the Court submitted to the jury only the invitation test, so that it is unnecessary to consider whether it could be found that there was any economic benefit, actual or potential, to the defendant from the plaintiffs' visit.

The invitation test does not deny that there may be an economic benefit to the defendant in the plaintiffs' visit or that such benefit alone is sufficient to permit the plaintiff to become an invitee. 2 Harper & James, The Law of Torts, supra. However, it would go further and hold that a visitor may become an invitee if the occupier, 'by his arrangement of the premises or other conduct has led the entrant to believe [they] were intended to be used by visitors for the purpose which the entrant was pursuing, and that such use was not only acquiesced in by the owner or possessor but that it was in accordance with the intention and design with which the way or place was adopted and prepared * * *.' 2 Harper & James, The Law of Torts, s. 27.12, p. 1479. This authority goes on to point out that the present trend is toward the more inclusive invitation test. Id., 1479, 1480.

In the situation before us, we believe that long established and easily understood--though not always easily applied--principles of fundamental justice and reasonableness in our law, which are in accord with the invitation test, furnish a sound guide. In the case of Hobbs v. George W. Blanchard & Sons Company, 75 N.H. 73, 70 A. 1082, 1087, 18 L.R.A.,N.S., 939, the Court held that 'if there be evidence tending to show inducement or invitation [to enter the premises], it becomes a question of fact for the jury' to determine whether the plaintiff is an invitee. 75 N.H. p. 81, 70 A. p. 1087. 'The gist of the liability consists in the fact that the person injured * * * entered the premises because he was led to believe that such use was * * * in accordance with the intention and design with which the way or place was adopted and prepared or allowed to be so used. * * *' Menard v. Cashman, 94 N.H. 428, 431, 55 A.2d 156, 159.

Applying these principles to the facts here, the jury could find that the stairs had been used for some twenty-five years prior to the accident by members of the community visiting the Well Baby Clinic for the same purpose as by the plaintiffs--to maintain the health and welfare of their children--and that this had been done with the knowledge and approval of the defendant. They could also find that this use was in accordance with what the plaintiffs had been led to believe was the intention and design of the defendant. Also, they could conclude that the hospital, as a place open to the public for the general purpose of promoting the health and welfare of the community, as well as treating the sick and injured, could not ignore the customary actions of the public with reference to the use of its stairs generally, and in particular to its use of them for the purpose of visiting the Well Baby Clinic. Pickford v. Abramson, 84 N.H. 446, 450, 152 A. 317.

In all the circumstances, the question of whether the plaintiffs were invitees or licensees was properly submitted to the jury, and the defendant's exceptions thereto are overruled. Insofar as Sandwell v. Elliott Hospital, 92 N.H. 41, 24 A.2d 273 might be thought to express a different view it is not to be followed. In this state, the law is that hospitals and other charitable institutions enjoy no immunity from liability for negligence. Wheeler v. Monadnock Community Hospital, 103 N.H. 306, 307, 171 A.2d 23.

The remaining issue is whether we should sustain the finding of the jury, which took a view, that the hospital failed in its duty to the plaintiffs to construct and maintain reasonably safe stairs. The transcript discloses that a qualified expert testified unequivocally that the stairs were unsafe due to faulty construction and maintenance, the certain treads were too narrow and that the substance covering them was 'too slippery' when installed and had become even more so with 'use.' The defendant argues that ordinarily a fight of stairs is not unreasonably dangerous when traversed in daylight. 2 Harper & James, The Law of Torts, s....