Goldman v. Kossove, 241

• Decision Date: 23 November 1960
• Docket Number: No. 241,241
• Citation: 117 S.E.2d 35,253 N.C. 370
• Parties: Mrs. Michele GOLDMAN v. Dr. Albert A. KOSSOVE and Dr. Irene L. Kossove.
• Court: North Carolina Supreme Court

Page 35

117 S.E.2d 35

253 N.C. 370

Mrs. Michele GOLDMAN v. Dr. Albert A. KOSSOVE and Dr. Irene L. Kossove.

No. 241

Supreme Court of North Carolina.

Nov. 23, 1960

Warren C. Stack and William E. Graham, Jr., Charlotte, for plaintiff-appellant.

Kennedy, Covington, Lobdell & Hickman, Charlotte, for defendants-appellees.

PARKER, Justice.

This is a summary of plaintiff's evidence, and of defendants' evidence favorable to her: Dr. Albert A. Kossove and Dr. Irene L. Kossove are husband and wife and physicians, who have practiced together for many years in the city of Charlotte. On 11 January 1956, and for 18 years prior thereto and subsequent thereto, they owned as tenants by the entirety a two-story house at 1530 Elizabeth Avenue in Charlotte, which was called Kossove Clinic and in which they maintained offices, etc., in their practice of medicine. There were three entrances to the Clinic, a front entrance on Elizabeth Avenue, a side entrance, and a rear entrance in the back, where there is a parking lot in which their patients are permitted to park their automobiles off the street. A driveway led from Elizabeth Avenue to the parking lot. The parking lot was covered with gravel and dirt, and there were trees, shrubs and grass around its edge.

On 11 January 1956 plaintiff parked her automobile in the parking lot for the purpose of taking her four-year-old son to be examined by Dr. Albert A. Kossove in the Clinic. A dozen times prior thereto she had parked in the parking lot, and had entered the Clinic through the rear entrance. On this occasion she and her son used the rear entrance, and in order to get to the rear entrance she had to walk through about a four-feet area of grass eight to twelve inches high. There were four steps leading up to the rear entrance, and the grass was eight to ten inches high right by the steps. The grass was thick. As she walked into the Clinic through the rear entrance, she could not see what was underneath this grass. There was no path leading from the back steps to the parking lot.

After Dr. Albert A. kossove had examined her little boy, she, with her son, walked out of his office and started down the hall to the rear entrance. Dr. Albert A. Kossove was walking with her, and said that her son's ear was better. He said nothing about her using the rear entrance. She started down the steps at the rear entrance, and as she stepped down the last step into the grass, half of her left foot went into a hole, and she well down twisting her ankle. She was looking as she walked down the steps, and saw no hole. It was in the daytime after lunch, and the visibility was good. She did not know how long the hole she stepped into had been there.

The first time she went to the Kossove Clinic she entered through the front entrance, and was taken to a little examining booth near the rear entrance. As she was leaving, Dr. Kossove was there with Mrs. Jones, an employee there, and Mrs. Jones said, 'you know you can use the back door to get to the parking lot,' and she did so. Many times before this occasion she had entered and left the Clinic through the rear entrance. She had stepped down the steps there into the grass at least 24 times before she fell, and had never seen a hole or depression there. Dr. Albert A. Kossove was present a half dozen times, when she left by the rear entrance, and had never said anything about her using it. There were no signs in the Clinic notifying patients to use the front entrance only.

This Court said in Pafford v. J. A. Jones Const. Co., 217 N.C. 730, 9 S.E.2d 408, 411: 'To constitute one an invitee of the other there must be some mutuality of interest * * *. Usually the invitation will be inferred where the visit is of interest or mutual advantage to the parties.'

A person entering the professional office, or the premises thereof, of a physician for professional examination or treatment by the physician is an invitee. Johnston v. Black Co., 33 Cal.App.2d 363, 91 P. 2d 921; Gilligan v. Blakesley, 93 Colo. 370, 26 P.2d 808; Reynolds v. John Brod Chemical Co., 192 I11.App. 157.

'In order to be an invitee or a business visitor it is not necessary that the visitor should himself be on the premises for the purpose of the possessor's business but it is sufficient that he be on the premises for the convenience or necessity of one who is on the premises for such a purpose.' 65 C.J.S. Negligence § 43(4), p. 518.

In Fortune v. Southern R. Co., 150 N.C. 695, 64 S.E. 759, it was held that a wife, who had accompanied her husband to defendant's station for the purpose of seeing him off as a passenger on defendant's train, was on defendant's premises by its implied invitation, and it was bound to exercise ordinary care for her safety.

In Hamlet v. Troxler, 4 Cir., 235 F.2d 335, it was held: Woman, who, while visiting daughter-in-law in defendant's hospital, was injured when she stepped into precipitous stairway leading to basement, by following directions of defendant's nurse who had permitted her to use toilet but had sent her to wrong door, was invitee, under North Carolina and Virginia law, at time of injury.

In Cohen v. General Hospital Soc. of Connecticut, 113 Conn. 188, 154 A. 435, the plaintiff went to the hospital for his wife, who had been a patient. The Court held he was an invitee.

'Where an invitee * * * has been intentionally or negligently misled into a reasonable belief that a particular passageway or door is an appropriate means of ingress or egress he is entitled to the protection of an invitee * * * while using such passageway or door. The duty of keeping the premises in a safe condition extends to ways of ingress or egress which, although not the proper ways, the owner of the premises permits customers to use without taking precautions to prevent such use * * *. ' 65 C.J.S. Negligence § 48(b).

In the instant case plaintiff carried her four-year-old son to the defendants' Clinic to be examined by Dr. Albert A. Kossove in his office in the Clinic. Dr. Albert A. Kossove told her, after he examined her little boy, her son's ear was better. Plaintiff's evidence viewed in a manner most favorable to her is sufficient to establish that her legal status at the time of her injury was that of an invitee as to that part of the premises of defendants where she fell and was injured.

Defendants owed to their patients, and those accompanying their patients on their premises for their convenience or necessity, a positive duty to keep the entry into and the exit from their Clinic, in which defendants maintained their professional offices or which entrances and exits, or any of them, such persons reasonably believed are held open to them by defendants as a means of access to, or egress from, their Clinic, in a reasonably safe condition for the use of their patients and those accompanying their patients for their convenience or necessity, and to give such persons timely notice and warning of latent or concealed perils known to defendants and not to them, or ascertainable by defendants through reasonable inspection or supervision. De...