Frankel v. Kurtz

• Decision Date: 25 March 1965
• Docket Number: Civ. A. No. 4611.
• Citation: 239 F. Supp. 713
• Court: U.S. District Court — District of South Carolina
• Parties: Bertha FRANKEL, Plaintiff, v. Sylvia F. KURTZ, Defendant.

239 F. Supp. 713

Bertha FRANKEL, Plaintiff, v. Sylvia F. KURTZ, Defendant.

Civ. A. No. 4611.

United States District Court W. D. South Carolina, Rock Hill Division.

March 25, 1965.

Vernon E. Sumwalt, and B. D. Hayes, Rock Hill, S. C., for plaintiff.

C. W. F. Spencer, Jr., Rock Hill, S. C., for defendant.

HEMPHILL, District Judge.

Defendant's Motion for Summary Judgment under Rule 56, Fed.Rules of Civ.Proc., initiated January 7, 1965, attacking, as part of the basis therefor, plaintiff's complaint, and plaintiff's following motion to amend under Rule 15 (a), induce present consideration in this forum.

Significant allegations of the original complaint read:

"That prior to August 25, 1963, plaintiff was invited by her daughter, the defendant, to visit in her home for the purpose of attending social events leading up to the marriage of plaintiff's grandson, who is defendant's son, on September 1, 1963; that pursuant to said invitation, plaintiff came to defendant's home in Rock Hill, South Carolina approximately the middle of August, 1963; that at said time plaintiff was seventy-three years of age and lived with her daughter, Ruth Frankel, for whom she cooked and did general housework; that, as plaintiff is informed and believes, the defendant is the owner of a certain residence and lot located at 749 Milton Avenue in the City of Rock Hill; that, unknown to plaintiff until after the accident hereinafter referred to, the defendant had employed a yard man to care for the yard and had instructed him or permitted him to cut ditches along the edges of a winding, narrow cement walkway leading from the sidewalk to the defendant's residence; that grass was allowed to grow so that it covered these ditches directly adjacent to the walkway and so that it obstructed and hid the ditches from the view of persons using said walkway.

"That, as plaintiff is further informed and believes, prior to August 25, 1963, the defendant had on at least one occasion almost injured herself by stepping into a ditch immediately adjacent to the subject walkway and that, on another occasion, a neighbor had almost injured himself by stepping into a ditch adjacent to said walkway, all of which was known to said defendant, who had been warned that someone was going to be hurt unless the situation was corrected; that, as aforesaid, plaintiff had no knowledge of the existence of the hidden danger upon the premises and the defendant herein, even after warning, failed, neglected or refused to notify or warn plaintiff of the existence of said hazard.

"That on the evening of August 25, 1963 at approximately 6:45 or 7:00 P.M., plaintiff, being an elderly person with poor eyesight, was going for a walk with her daughter, Ruth, and was proceeding along the narrow walkway from the residence to the sidewalk running parallel to the street and was following behind her daughter; that, as aforesaid, said walkway was winding and plaintiff, being totally unaware that the level of the yard was not even with that of the sidewalk immediately adjacent thereto, was walking along said walkway when, as the walkway curved to the right, her left foot went into the ditch on the left side of said walkway in the direction in which she was walking thereby causing her ankle to turn as a result of which she was caused to fall violently to the ground primarily on her left arm and shoulder; that plaintiff suffered immediate and excruciating pain as a result thereof; that plaintiff is informed and believes that she suffered a severe injury to her left arm and shoulder, for which she was hospitalized; that a pre-existing hypertensive condition was aggravated as a result of said injury; that she has a serious and permanent disability of the left arm and shoulder which will prohibit her from performing her normal and usual household duties and even from completely dressing herself; that she has suffered extreme and excruciating pain since the date of said injury which, even though same has lessened during the past eight months, will remain with her through the balance of her life.

"That the injuries and damages sustained by the plaintiff were directly due to and proximately caused by the negligence of the defendant herein in failing to warn plaintiff of a dangerous, latent condition upon her premises, the existence of which she knew and had been warned about and which was unknown to plaintiff and which she could not reasonably ascertain and, further, that the defendant knew, or should have known, that because of plaintiff's age and poor eyesight that such condition would be especially hazardous or dangerous to plaintiff to a much greater degree than it would to the average person."

In its general denial as part answer defendant inter alia avers:

"2. * * * Admits * * * except as to whether defendant's employment of a yard man was unknown to plaintiff and as to existence of any hidden ditches along the walkway.

"3. * * * Denies that defendant was knowingly conscious of any hidden danger capable of injuring her mother, the plaintiff herein, without warning her of such danger."

Defendant's motion lies whenever, and only whenever, there is no genuine issue as to any material fact.¹ In this dispute the bare allegation of the pleadings come under the spotlight of judicial search.

This Court is of the opinion issues of fact are joined by the pleadings. Plaintiff alleges unknown and unwarned ditches along a walkway, obscured and latently dangerous, of which defendant had previous experience and knowledge, and that notification to plaintiff was not forthcoming despite defendant's knowledge of the "existence of the hazard." Defendant denies the danger, denies knowledge or "negligence on her part." At this point, a decision is a necessary projection.

But, defendant argues, plaintiff alleges that the acts and delicts alleged constitute at most simple negligence, upon which recovery cannot be based. Plaintiff's motion seeks to salvage by amendment to characterize the delicts as "gross negligence, heedlessness and recklessness" instead of simple negligence.

Admittedly plaintiff did not move to amend within twenty days of the filing of his complaint on April 20, 1964, nor enjoys, at this sitting, previous leave of the Court or written consent of the adverse party. Plaintiff must hang her hat, so to speak, on the statutory largess that "leave to amend shall be freely given, when justice so requires."² The reason for the inclusion of this liberality has been repeatedly construed as being in the interest of avoiding technicality and facilitating a proper decision on the merits.³ As is declared in Foman v. Davis, 371 U.S. 178, 179, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222:

"If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of the allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be `freely given.' Of course, the grant or denial of an opportunity, to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules."

While this court dislikes the term "mandate" as classified in the annotations under 28 U.S.C.A. Rules 15,⁴ the definition of duty, policy, responsibility, rings clear.

But, we now enquire, if plaintiff can amend, proceed, what is the law of the case?

Plaintiff and defendant join in designating, and/or classifying, the plaintiff as a "social guest", a term, or a category, not hitherto treated as such, or by such name, in South Carolina common law, or by statute. This Court, then, is saddled with the question of whether the classification connotes a definition of variety and distinction all its own. This Court thinks not.

A social guest is a licensee. "A licensee is a person who is privileged to enter upon land by virtue of the possessor's consent. The possessor is under no obligation to exercise care to make the premises safe for his reception, and is under no duty toward him except:

(a) To use reasonable care to discover him and avoid injury to him in carrying on activities upon the land.

(b) To use reasonable care to warn him of any concealed dangerous conditions or activities which are known to the possessor, or of any change in the condition of the premises which may be dangerous to him, and which he may reasonably be expected to discover.⁵

In the instant case plaintiff was a gratuitous licensee. If a danger is not hidden from her, is patent, and an ordinary woman of reason and prudence would reasonably and normally be expected to see and avoid same, defendant possessor owes no duty to warn. If a danger is present, hidden, latent, and defendant possessor (owner) knows, and fails to warn, or not knowing, fails to warn because of lack of ordinary reason and prudence to discover, and plaintiff is injured, plaintiff can recover.

A "social guest" is the same as a "social visitor", "guest" or "licensee". With or without invitation to visit, the duty of the host is to refrain from wilful and wanton injury. Knox v. Goodman, 45 N.J.Super. 428, 133 A.2d 50. See also Cunag v. McCarthy, 42 Ill.App. 2d 36, 191 N.E.2d 404, 407; Drutman v. Agar, 17 Misc.2d 291, 185 N.Y.S.2d 142, 144.

This Court determines, from a review of authorities that the requirement of knowledge (or the requirement of discovery in order that knowledge can be realized by the application of ordinary reason and prudence under the circumstances) of the defect or danger supposes liability...