Garafano v. Neshobe Beach Club, Inc.

• Decision Date: 05 December 1967
• Docket Number: No. 1090,1090
• Citation: 126 Vt. 566,238 A.2d 70
• Court: Vermont Supreme Court
• Parties: Louis GARAFANO v. NESHOBE BEACH CLUB, INC., Rutland Chamber of Commerce, Inc., and JosephTailby.

Page 70

238 A.2d 70

126 Vt. 566

Louis GARAFANO v. NESHOBE BEACH CLUB, INC., Rutland Chamber of Commerce, Inc. and JosephTailby.

No. 1090.

Supreme Court of Vermont.

Dec. 5, 1967.

Leave to Reargue Denied Jan. 25, 1968.

Abatiell & Abatiell, Rutland, for plaintiff.

Alfred A. Guarino, White River Junction for Neshobe Beach Club, Inc.

Black & Plante, White River Junction, Harry A. Black, White River Junction, on the brief, for Tailby.

Ryan, Smith & Carbine, Rutland, for Rutland Chamber of Commerce.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

KEYSER, Justice.

This is an action to recover for personal injuries sustained by plaintiff. At the close of plaintiff's case the court directed a verdict for each defendant. The plaintiff claims this was error and appealed. The question presented is whether the plaintiff had made out a prima facie case against one or more of the defendants.

The evidence taken in the light most favorable to the plaintiff tends to show the following facts. In early 1963 defendant Rutland Chamber of Commerce, Inc. (Chamber) promoted its annual membership drive. The plaintiff, although not a member, participated in it at the request of his employer. He enrolled the most members and turned in the most money and was on the winning team. The Chamber, as it had done in previous years, provided a reward for the winners. This was a free steak roast and was held June 19, 1963 on the east shore of Lake Bomoseen at the cottage of one of its members, defendant Tailby. The function was held at that location by invitation of defendant Tailby to the Chamber. He furnished the facilities and Chamber had charge of the party.

The plaintiff received a written invitation from the Chamber which gave the details of the party and 'rules of the steak roast.' These recited that softball, horseshoes and badminton would be played and said 'If you have any ball gloves, please bring them.' The plaintiff complied and brought his ball glove.

The recreation area was in two parts, one being an area of land located westerly of eleven cottages built in a semicircle, the other being land beyond the semicircle, or westerly of it, and running to the shore of the lake. The land within the semicircle was owned by the cottage owners within the semicircles, 1/10th interest in each owner excepting defendant Tailby and another owner, their interest being 1/20th each. A marble marker set in the ground identifies the dividing line of the land owner by the eleven cottage owners and the land westerly of it to the lake. Each cottage owner took care of a pie-shaped piece of the land within the semicircle running from his cottage to the marble marker.

All of the land from the marble marker to the lake is owned by defendant Neshobe Beach Club, Inc. (Neshobe) and is used as a recreational area. This area owned by Neshobe is shown on a map, Plaintiff's Exhibit #1, as 'A Beach.' This places the marker at one-half the distance from each end of the half-circle with a broken line extending from one point of the half-circle to the other and intersecting the center of the marker. Only the cottage owners in that particular area can become members of Neshobe. As such members they have access to and the use of Neshobe's land. In addition they also have the right for their guests to use the entire recreational area. Neshobe has charge of and the responsibility of caring for this area and hires a man to take care of it and keep up the grounds.

As indicated by the invitation, a softball game was organized, bases were set out and sides chosen. The plaintiff was asked to play as roving center fielder on one of the teams. A short time after the game got under way a fly ball was hit out in his direction. Before this plaintiff had moved over into the left field area because the member playing there had gone after a ball hit towards the lake. In his attempt to catch the ball, plaintiff stepped into a hole, which he later thought might be a woodchuck hole, and seriously injured his left leg. As a consequence he brought suit charging each defendant with negligence for failure to maintain the premises in a safe and reasonable condition and state of repair so as to avoid injury to the plaintiff and for failure to warn plaintiff of all dangers concealed on said premises.

Two of the defendants are corporations and as such they are liable for their negligent torts, and for negligence of their officers and servants acting in the course of their official duty or employment, in the same manner and to the same extent that individuals are liable under the same circumstances. Selinas v. State Agricultural Society, 60 Vt. 249, 254, 15 A. 117.

Each defendant contends that plaintiff was a gratuitous licensee, or social guest, and cite Lomberg v. Renner, 121 Vt. 311, 315, 157 A.2d 222 as authority supporting their contention. However, the facts in that case are dissimilar to those in the present case. Here the plaintiff was on the premises in question by an express invitation and known to be present whereas in the Lomberg case the owner had no knowledge of the plaintiff's presence in her home. In that situation this court there said that the only duty imposed on the owner is not to do any wilful or wanton act to injure the guest.

They also cite Wool v. Larner, 112 Vt. 431, 26 A.2d 89, 93 in which the question arose of whether plaintiff was a business visitor or a gratuitous license of a tenant of the defendants.

In the Wool case the plaintiff and a Mrs. Allen were invited to come to the apartment of a friend in a building owned by the defendants to wait for Mrs. Allen's husband to call for them after work and drive them home. This was late in the evening. As the plaintiff and Mrs. Allen were walking along the dark driveway to reach their friend's apartment the plaintiff fell into a coal hole near the building. The court said the question whether plaintiff 'was one (a business visitor) or the other (a gratuitous licensee) is not material here. No question is made that she was passing along the driveway for the purpose of entering the McNalley apartment in response to Mrs. McNalley's invitation at the time she fell into the coal hole. She was, therefore, rightfully and lawfully in the driveway using it for a purpose for which it was maintained by the defendants, and for which they must be taken to have expected it would be used.'

In Coburn v. Village of Swanton, 94 Vt. 168, 109 A. 854, an employee of the defendant hired the plaintiff, a twelve year old boy, to carry food to him and deliver it to him within defendant's power house. While leaving, the boy was injured and brought suit for negligence. At p. 171 of 94 Vt., at p. 856 of 109 A. the opinion reads: 'The main question is whether it appears from the declaration that the plaintiff was, at the time of the injury, at the place where he accident occurred by the invitation of the defendant, express or implied-whether he was there as an invitee, or merely as a licensee. If the allegations show that he stood in the position of the former, the declaration is sufficient, otherwise it is not.'

If the owner or occupier of land 'directly or by implication induces persons to enter on and pass over his premises, he thereby assumes an obligation that they are in a safe condition, suitable for such use.' Hobbs v. George W. Blanchard & Sons Company, 75 N.H. 73, 70 A. 1082; Cf. Selinas v. State Agricultural Society, supra. In the Hobbs case the court further 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 plaintiff is an invitee.

There is no dispute but that Neshobe owns the land which appears on Plaintiff's Exhibit #1 as 'A Beach.' Only cottage owners in the semicircle area are eligible to become members of Neshobe corporation. Each member pays a yearly assessment. Neshobe hires a man to take care of the beach area, mow the grass and keep up the grounds. All members have access to and the use of the 'A Beach' area. Each one has the further right to have his guests also use that area. Neshobe's land is apparently owned only for recreational purposes for the use and benefit of the foregoing persons and are maintained solely for this reason.

The Chamber had offered plaintiff and others a prize as an inducement to gain members. It was fulfilling its promise by holding the steak roast at the place in question by the invitation of its member and Neshobe's member, defendant Tailby. This was the only reason for plaintiff's presence there. No question is raised but that the area for the sports was rightfully being used by the members of Chamber-a purpose for which it was maintained.

It was only by reason of Tailby's rights as a member of Neshobe and as a cottage owner that the entire recreational area became available to use for the sporting events, particularly the softball game. Except for Tailby the party could not have taken place and the persons invited by Chamber would have had no right to be there. Arrangements for the party were made by Tailby with the managing director of Chamber. The whole area became available for the party only by Tailby's action and invitation. Tailby knew the grounds were to be, and were being, used for this purpose. Softball was one of the planned activities for the occasion as it had been in previous years. Under these circumstances there was at least an implied invitation by Neshobe extended to those members of Chamber who were entitled to come to the steak roast as his guests. This is not a case of Tailby's knowledge being imputed to the Neshobe corporation.

Moreover, there is evidence from which the jury could have found that the relationship between Neshobe and Tailby, as well as all other members, was analogous to that of landlord and tenant. In Wool v. Larner, supra, we said at page 435, 26 A.2d at page 92:

'It is well settled that if a landlord...