Duckers v. Lynch

• Decision Date: 07 March 1970
• Docket Number: No. 45541,45541
• Citation: 204 Kan. 649,465 P.2d 945
• Parties: H. DUCKERS, Appellee, v. T. LYNCH, Appellant.
• Court: Kansas Supreme Court

Page 945

465 P.2d 945

204 Kan. 649

H. DUCKERS, Appellee, v. T. LYNCH, Appellant.

No. 45541.

Supreme Court of Kansas.

March 7, 1970.

Rehearing Denied April 21, 1970.

Syllabus by the Court

1. Under the law in this jurisdiction a social guest has the status of a licensee and his host owes him only the duty to refrain from willfully, intentionally or recklessly injuring him.

2. In an action by a social guest against his host to recover for injuries sustained as the result of a fall when the guest, while on the way to the bathroom,

mistakenly opened a door adjacent to the bathroom door and fell down a basement stairway, the record is examined, and it is held: A motion for directed verdict on behalf of the host should have been sustained because the evidence was insufficient to establish wanton and reckless conduct on his part.

Leonard O. Thomas, Kansas City, argued the cause, and Lee E. Weeks, Kansas City, with him on the brief for appellant.

J. W. Mahoney, Kansas City, argued the cause, and David W. Carson, Kansas City, with him on the brief for appellee.

O'CONNOR, Justice:

Thomas Lynch (defendant) has appealed from a $12,500 judgment entered on a jury verdict in favor of Harry Duckers (plaintiff) for personal injuries Duckers sustained as the result of a fall on November 16, 1964, while a social guest in Lynch's home.

Although several points are raised, the pivotal question which disposes of the appeal is whether the trial court erred in failing to sustain defendant's motion for directed verdict based on the insufficiency of evidence to establish liability on the part of defendant.

The fall climaxed a day of social activity which commenced with Duckers attending a Saturday afternoon football game at K. U., followed by a seven o'clock dinner party, in company with his wife, at the home of friends. The guests remained after dinner for quite some time and, with a bartender attending to their libational needs, spent the ensuing hours conversing, and singing songs. During the evening one of the Duckers' sons came and asked to use the car, and Mrs. Duckers left the party with him. Duckers, however, remained at the party until after midnight, when he left with his neighbors, Dr. and Mrs. Paul Carpenter. After the trio got into the Carpenter automobile one of them suggested, 'Let's go by and talk football with Tom,' and they drove to Lynch's house. Duckers, Lynch and Carpenter had been good friends for several years and thought nothing of dropping in, on occasion, at one another's home late at night.

Upon the group's arriving at the Lynch residence, Dr. Carpenter knocked on the door. When the Lynches answered the knock at the door their appearance strongly suggested they had already retired, but they invited the three to come in. The hosts and their guests then walked through the living room and along a hallway to a combination kitchen-family room at the back of the house where they all sat down at a large, round table and began to chat. Lynch inquired, 'Would you all care for a drink?' and his guests replied, 'That would be fine.'

While Lynch was mixing the drinks, and the others were engaging in conversation, Duckers, without saying anything to or asking direction of anyone, got up from the table to go to the bathroom. He thought he knew where the bathroom was, having been in Lynch's home and having been to that particular bathroom before.

The door to the bathroom was identical to the door to the basement. Both were side by side (about one foot part) on the north wall of the hallway between the kitchen and living room. The hallway was described as being about three feet in width and relatively short, without doors at either end. The bathroom door opened out into the hallway; the other, into the stairway down to the basement. Both doors were closed, but neither was hooked or locked, nor was there a light burning in either the bathroom or the basement. Duckers walked from the table, down the hallway-a distance of about twenty-two feet-past the bathroom door, turned the knob of the other door, and stepped into what he discovered too late was the stairway to the basement. Although there was no light in the hallway, the area was sufficiently illuminated from lights in the living room and the kitchen so that Duckers was able to see the door he actually opened.

The stairs were wooden, steep, and dark, and descended five steps to a landing, then turned and descended seven more steps to the concrete basement floor. There were no handholds or railings, and no side wall. Duckers hung on to the doorknob with his left hand, having lost his right arm in a farm accident years ago, and as the door swung around it 'bounced him off' and he landed on his feet on the landing, then went over backwards and landed on his feet at the bottom of the concrete floor, breaking his hip. As a result he was hospitalized for thirty days, incurred substantial medical expense, and was unable to return to his job as county agricultural agent until February 1965, and then only on crutches.

About six or eight months prior to Duckers' experience Mrs. Breitenstein, a neighbor of the Lynches, had fallen down the same basement stairs when she, too, attempted to go to the bathroom and opened the wrong door. Luckily she was able to break her fall by grabbing the 'doorknobs' with both hands and was not injured. After Mrs. Breitenstein's fall Mr. and Mrs. Lynch talked about putting up handrails on the basement stairs or seeing if there was 'some form of a light or something to put there to distinguish the doors.' Nothing, however, was done with respect to carrying out these ideas. There also had been several other occasions when meter readers and another neighbor had started through the wrong door.

At the conclusion of plaintiff's evidence defendant offered no evidence but moved for a directed verdict, which was overruled. The motion was later renewed in post-trial proceedings and was again denied.

The case was submitted to the jury under instructions to the effect that plaintiff's status as a social guest was that of a licensee, and the only duty owed by defendant was to refrain from 'wantonly or recklessly' injuring him.

Both parties concede that the duty owed plaintiff by defendant was no greater than that owed any other licensee. (See, Ralls v. Caliendo, 198 Kan. 84, 422 P.2d 862.) Under the law in this jurisdiction an owner or occupier of property owes no duty to a licensee except to refrain from willfully, intentionally or recklessly injuring him. (Smith v. Board of Education, 204 Kan. 580, 464 P.2d 571; Lemon v. Busey, 204 Kan. 119, 461 P.2d 145; Roberts v. Beebe, 200 Kan. 119, 434 P.2d 789; Ralls v. Caliendo, supra; Graham v. Loper Electric Co., 192 Kan. 558, 389 P.2d 750; Blackburn v. Colvin, 191 Kan. 239, 380 P.2d 432; Backman v. Vickers Petroleum Co., 187 Kan. 448, 357 P.2d 748.) Negligent injury of a licensee will not give rise to a claim for relief. A mere licensee takes the premises as he finds them and assumes all risks incident to their condition. (Graham v. Loper Electric Co., supra.)

The explanation usually given by the courts for classifying social guests as licensees is that the guest is expected to take the premises as the host himself uses them, and does not expect, and is not entitled to expect, that they will be prepared for his reception, or that precautions will be taken for his safety, in any manner in which the host does not prepare or take precautions for his own safety, or that of members of his family. (2 Restatement of Torts 2d, § 330, Comment h. 3.)

The contract between the duty owed a licensee and an invitee was sharply drawn in Graham v. Loper Electric Co., supra, by the following language:

'The owner or occupant of premises owes a much higher degree of care to avoid injury to an invitee than to a mere licensee. The owner or occupant of premises is liable to an invitee for injuries resulting from failure to exercise reasonable or ordinary care for the invitee's safety. The duty to exercise ordinary care is active and positive, and no element of wilfulness or wantonness need be present. The inviter has the duty to protect an invitee against any danger that may be reasonably anticipated. The owner or occupant of premises is charged with the duty of exercising reasonable care to keep the premises in reasonabl(y) safe and suitable condition so as to avoid injury to an invitee or of warning an invitee of concealed perils of which the owner or occupant knows or should know by the exercise of reasonable diligence. (Seymour v. Kelso, 136 Kan. 543, 16 P.2d 958; Thog Martin v. Koppel, 145 Kan. 347, 65 P.2d 571; Glenn v. Montgomery Ward & Co., 160 Kan. 488, 163 P.2d 427; George v. Ayesh, 179 Kan. 324, 295 P.2d 660; Gardner v. Koenig, 188 Kan. 135, 360 P.2d 1107.)' (192 Kan. pp. 561-562, 389 P.2d 750, p. 753.)

Plaintiff based his claim for relief on what he alleged was wanton and reckless conduct of the defendant in the following respects: (1) In permitting the existence and use of two adjacent doors in the same hallway, one to the bathroom and one to the basement; (2) failure to maintain adequate lighting in the hallway; (3) failure to install a light or other device on the basement door; (4) failure to light the basement steps; (5) failure to install a railing on the basement steps; (6) knowledge that the condition of the premises was dangerous; and (7) failure to warn plaintiff of said dangerous condition.

When describing conduct as being either 'wanton' or 'reckless,' we discern little or no difference to be attached to the meaning of these terms. In either case we are dealing with conduct which is something more than ordinary negligence, yet something less than willful or intentional injury. This is demonstrated by the marked similarity found in the commonly accepted definitions. To constitute 'wantonness,' the act must indicate a realization of the imminence of danger and a reckless disregard and...