Dutton v. Donald M. Drake Co.

• Decision Date: 29 April 1964
• Citation: 237 Or. 419,391 P.2d 761
• Parties: Harry J. DUTTON, Appellant, v. DONALD M. DRAKE COMPANY, a corporation, and Marus Marble & Tile Co., Inc., a corporation, Respondents.
• Court: Oregon Supreme Court

Page 761

391 P.2d 761

237 Or. 419

Harry J. DUTTON, Appellant, v. DONALD M. DRAKE COMPANY, a corporation, and Marus Marble &amp Tile Co., Inc., a corporation, Respondents.

Supreme Court of Oregon, In Banc.

Argued and Submitted Jan. 6, 1964.

Decided April 29, 1964.

Thomas H. Tongue, Portland, argued the cause for appellant. With him on the brief were Hicks, Davis, Tongue & Dale, William M. Dale, Jr., and Charles J. Strader, Portland.

Lamar Tooze, Portland, argued the cause for respondent Donald M. Drake Co.

Edwin J. Peterson, Portland, argued the cause for respondent Marus Marble & Title Co., Inc. With them on the brief were Tooze, Powers, Kerr, Tooze & Morrell and James Arthur Powers, Portland.

Before McALLISTER, C. J., and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN, and DENECKE, JJ.

ROSSMAN, Justice.

This is an appeal by the plaintiff Harry J. Dutton, and a cross appeal by the defendants-respondents Donald M. Drake Company and Marus Marble & Title Co., Inc., from a judgment notwithstanding the verdict which the circuit court entered in favor of the two defendants upon their motions. The verdict was in favor of the plaintiff in the sum of $48,000 damages. We shall have no occasion to consider the cross appeal. The judgment notwithstanding the verdict was entered in the defendants' favor under a ruling that the evidence did not establish liability upon the part of either defendant to the plaintiff.

The plaintiff instituted this action to recover damages for an injury which he suffered July 14, 1960, in the structure entitled Lloyd Center in Portland. At that time Lloyd Center was nearing completion.

The defendant Donald M. Drake Company was the general contractor for most of the project. The defendant Marus Marble & Title Co., as a subcontractor, performed much of the terrazzo work that constituted part of the structure.

Lloyd Center covers many blocks. Its tenants are stores, offices, banks, restaurants, and similar enterprises. It also houses a large ice-skating rink.

A tenant that had taken a lease upon space in the Center was known as Mannings. It operates restaurants on the Pacific coast. A sizeable restaurant was under construction for it in the Center. The plaintiff, as the manager of construction for Mannings, designed its restaurants and supervised their construction. He came from his home in California to the Center July 13 to inspect the restaurant's construction and negotiate for the building of another eating place in the Center to be known as Rinkside Cafe. He received his injury by falling after he had taken some steps upon the floor of the ice-skating rink which was at that time receiving a coating of terrazzo. The terrazzo had received its first grind and was awaiting the second or finish grind.

The plaintiff contends that he was an invitee and that it was, therefore, the duty of the defendants to have the premises in a reasonably safe condition for his reception. Lloyd Corporation, Inc., owner of the project, is not a defendant. Each defendant denies that the plaintiff was an invitee. Each particularly denies that he was an invitee upon the floor of the ice rink.

The complaint, in specifying the neglect which it charges to the defendants, states:

'Defendants carelessly and negligently allowed water and grinding compound to accumulate and remain on the surface of said ice skating rink then under construction, creating a slick and hazardous condition.

'Defendants failed and neglected to place warning signs in and around said ice skating rink or otherwise warn plaintiff of the slick and slippery condition of the ice skating rink then under construction.

'Defendants failed and neglected to barricade said ice skating rink so as to prevent plaintiff and other persons in and about said ice skating rink from walking thereon.

'Defendants carelessly and negligently barricaded the walkway around said ice skating rink, then under construction, so that plaintiff and others using said area were unable to proceed around said ice skating rink.'

The answer of each defendant, in addition to denying all charges of negligence, alleged that the plaintiff was guilty of contributory negligence. Each answer made the following charges:

'That plaintiff, with full knowledge and appreciation of the conditions existing at the time and place of his said fall, voluntarily exposed himself to them by attempting to walk on said ice skating rink then under construction.

'In entering upon a restricted area and one which was not open to pedestrian travel and in doing so, walking upon a surface which plaintiff knew or in the exercise of reasonable care should have know that the materials being used in the construction of said surface were slippery.'

Those charges are denied in the reply.

The plaintiff presents only one assignment of error; it reads: 'The court erred in sustaining defendants' motions for judgment notwithstanding the verdict. The grounds of both motions were * * *.'

One of the entrances to Lloyd Center is at Multnomah Street. July 14, the plaintiff entered the Center by that entrance. Multnomah Street lies east and west. A Center corridor begins at Multnomah Street and runs north until it reaches the ice-skating rink where it terminates. There the north-south corridor enters a corridor that runs east and west.

Adjoining the north-south corridor upon the east is a structure occupied by the Lloyd Center branch of the Meier & Frank store. To the west of the corridor is the building which houses Mannings restaurant. Unlike the Meier & Frank store, Mannings restaurant sets back from Multnomah Street and is separated from that thorough-fare by a covered parking area for automobiles. We do not know the width of the parking area, but it is less than the width of the Meier & Frank store.

Before his injury on the morning of July 14 the plaintiff had strolled about Lloyd Center for about a half-hour and then entered Mannings restaurant where he conferred with Mr. Howard Kinney, a supervising architect for the project. The two discussed the work that remained to be done to bring the utilities to the restaurant. The plaintiff then asked Mr. Kinney to accompany him to the offices of Lloyd Corporation where he proposed to request installation of the utilities and authorization for Mannings to build the Rinkside Cafe. The two men then started for the Lloyd Center office on the third floor of the structure. The plaintiff intended to walk east upon the east-west corridor about two hundred feet where he would reach a staircase that led to the second floor. But as he left the restaurant he observed a scaffold in the east-west corridor upon which two plasterers were working and which was as broad as the corridor and therefore rendered it impossible for him to enter that passageway. Kinney had not intended to take the route which the plaintiff chose. As a witness for the plaintiff he testified: 'I started to my left and Mr. Dutton went right on ahead.' After the plaintiff saw that the scaffold prevented him from entering the corridor that ran east, he stepped over a curb that separated the corridor from the rink and entered upon the incomplete terrazzo coating of the rink. Kinney, by turning left, intended to reach a staircase to the west. The plaintiff testified that the part of the rink's surface upon which he stepped was dry. He then took about four steps directly ahead whereupon his feet slipped from under him and he fell to the floor of the rink. He conceded that the place where he fell was wet.

The plaintiff, as we have said, contends that he was an invitee of the defendants. He fell after he had entered the ice skating rink. Therefore, if he is deemed an invitee, the record must show that he had been invited, expressly or impliedly, to enter the ice rink. The plaintiff has the burden of proof upon that subject.

The Drake Company, under contract with the owner of the Center (Lloyd Corporation, Inc.), but built the outer shell of the restaurant. Under contract with Mannings it had built the interior of the restaurant.

The principle of law which governed the plaintiff's status when he entered Lloyd Center is expressed in the following words which we take from Employers Mutual Liability Insurance Co. of Wisconsin v. Di Cesare and Monaco Concrete Const. Corporation, 9 A.D.2d 379, 1194 N.Y.S.2d 103:

'Workmen coming onto the premises to perform construction or repair work are, in effect, invitees, no matter whose employees they may be, and the duty owed them is generally analogous to that owed to any business invitee * * *.'

Although the plaintiff was not a mechanic but was a restaurant designer and construction superviser, yet, for the purpose of this case he should be deemed a workman. He came upon the premises to inspect work that was under way and to arrange for additional construction. As an employee of Mannings he was an invitee at least when he was in the open corridors of the Center. The question occurs as to his status when he left the corridor and stepped into the ice rink which was not a part of the structure intended for the use of those who wished to go about as pedestrians.

The mere fact that a person is invited into a structure and thereby becomes an invitee does not mean that he is an invitee in every part of the building and that he is at liberty to enter wherever he wishes. For example, a person who enters a bank and makes a deposit of money at the window of a teller would discover that his status as an invitee had changed to that of a trespasser if he attempted to make his way into the teller's cage.

Napier v. First Cong. Church, 157 Or. 110, 70 P.2d 43, holds:

"Where a person has entered upon the premises of another under invitation, express or implied, he is bound by that invitation, and becomes a bare licensee if he goes, for purposes of his own, to some part of the premises other than that to which he was invited, uses the premises for purposes or in ways other than those for which...