Fleck v. Nickerson

• Jurisdiction: Oregon
• Parties: Marietta FLECK, Appellant, v. James NICKERSON and Illa B. Nickerson, Respondents.
• Citation: Fleck v. Nickerson, 239 Or. 641, 399 P.2d 353 (Or. 1965)
• Court: Oregon Supreme Court
• Decision Date: 24 February 1965

Page 353

399 P.2d 353

239 Or. 641

Marietta FLECK, Appellant, v. James NICKERSON and Illa B. Nickerson, Respondents.

Supreme Court of Oregon, Department 2.

Argued and Submitted Feb. 4, 1965.

Decided Feb. 24, 1965.

Philip A. Levin, Portland, argued the cause for appellant. On the brief were Garry Kahn and Pozzi, Levin & Wilson, Portland.

Lynne W. McNutt, Coos Bay, argued the cause for respondents. On the brief were Orrin R. Ormsbee and McNutt & Gant, Coos Bay.

Before McALLISTER, C. J., and SLOAN, GOODWIN, HOLMAN, and LUSK, JJ.

HOLMAN, Justice.

Plaintiff, a sixty year old woman, was a social visitor at the home of the defendants, her son and daughter-in-law. The occasion was the son's birthday. It was dark when she was ready to leave, and she found that the several steps leading down to the ground from the front porch had become frosty. She expressed apprehension of her ability to negotiate them successfully, and her daughter-in-law, who was accompanying her to the door, suggested that she use the back door where there was only one step. The back step consisted of a block of wood laid on the ground. There was no porch or outside light, the only light available being a dim reflection from the kitchen window. Plaintiff stepped down upon the block and it tipped with her, throwing her to the ground and causing the injuries resulting in her claim for damages in this action.

There was no evidence as to the size or shape of the block of wood. There had been numerous blocks used as a step in the six or seven years defendants had lived there. The one in use at the time of the accident was subsequently destroyed. There was no evidence as to the length of time the block in question had been there. The defendants and their children used the back step and there was no evidence that the defendants had any notice or knowledge of the propensity of it to be unstable. At the completion of plaintiff's case in chief the court granted a judgment of involuntary nonsuit. This is the error here assigned.

A social guest at the home of another, with respect to the condition of the premises, occupies the position of a licensee and not an invitee. There is no duty on the part of the host to make the premises safe for his guest as the host merely offers his premises for the enjoyment by his guests with the same security that the host and the members of his family have. However, a host who knows of a concealed danger or trap is guilty of negligence if he allows his guest to come into contact with it and suffer injury thereby, without first having warned him of it. A trap or concealed danger is one which a person who does not know the premises could not reasonably be expected to avoid. McHenry v. Howells, 201 Or. 697, 701, 272 P.2d 210. Baer v. Van Huffell, 225 Or. 30, 33, 356 P.2d 1069.

A licensee must take his chances as to any defective condition unknown to the occupier, and is entitled at most to a warning of dangers that are known. Prosser on Torts, 3rd ed., § 60, page 388; Harper & James, Vol. 2, § 27.9, page 1471; McHenry v. Howells, supra. Also, see cases collected at 55 A.L.R.2d 536. Plaintiff relies upon a statement made in Burch v. Peterson, 207 Or. 232, 295 P.2d 868, to the effect that the claimant had to show 'that the defendants either knew, or by the exercise of reasonable care could have known of the hazardous condition of the premises.' (Emphasis supplied.) The case then cites McHenry v. Howells, supra, which has a statement to the opposite, and the cases of Starberg v. Olbekson, 169 Or. 369, 129 P.2d 62, and Lee v. Meier & Frank Co., 166 Or. 600, 114 P.2d 136, which are both cases involving customers in stores who are business invitees and the cases are therefore inapplicable. It would appear the Court was probably misled by a statement quoted in McHenry v. Howells, supra, from 65 C.J.S. Negligence § 38, page 504, relative to the duties of the occupier of land to a licensee which...