Goyette v. Sousa

• Decision Date: 24 July 1959
• Docket Number: Nos. 9986,9987,s. 9986
• Citation: 90 R.I. 8,153 A.2d 509
• Parties: Vera R. GOYETTE v. Anthony SOUSA. Armand J. GOYETTE v. Anthony SOUSA. Ex.
• Court: Rhode Island Supreme Court

Page 509

153 A.2d 509

90 R.I. 8

Vera R. GOYETTE v. Anthony SOUSA.

Armand J. GOYETTE v. Anthony SOUSA.

Ex. Nos. 9986, 9987.

Supreme Court of Rhode Island.

July 24, 1959.

Rosenstein & Jacques, Providence, for plaintiffs.

Graham, Reid, Ewing & Stapleton, Edward J. Rogan, Providence, for defendant.

ROBERTS, Justice.

These two actions of trespass on the case for negligence were brought by a husband and wife and arose out of injuries sustained by the wife on the defendant's premises. The cases were tried together by a justice of the superior court, sitting without a jury, who rendered a decision for each plaintiff. In each case the defendant duly excepted to the decision and subsequently prosecuted his bill of exceptions to this court.

On June 16, 1957 plaintiff Vera R. Goyette was injured when her leg went through the metal deck of a pontoon, so called, which was maintained by defendant on his water-front premises in the town of Warren. At the time of her injury she was with her husband, plaintiff Armand J. Goyette, and was preparing to enter his skiff which was moored to the pontoon.

It is not substantially disputed that defendant was the owner of premises in the town of Warren wherein he conducted wholesale and retail shellfish businesses and also rented dockage space for boats. Upon occasion his wharf was used by a ferry. On the premises defendant maintained two buildings, one set back from the water for the retail sale of prepared sea food for consumption on the premises, and another which extended to the water for use in connection with the wholesale shellfish business. On one side of the buildings there were ramps leading to the water and pontoons or bulkheads which were used for mooring boats.

The plaintiff husband was a part-time shellfisherman. Prior to the date in question he and defendant had entered into an arrangement whereby he would be permitted to moor his skiff at one of the pontoons. He paid no rent for the privilege of thus using defendant's property other than to agree to sell to defendant all of the shellfish which he might catch. The defendant had similar arrangements with several other shellfishermen who also used his property for docking their boats. At the time in question the husband had been using defendant's docking facilities since November 1956.

On Sunday, June 16, 1957, he returned from shellfishing sometime in the middle of the afternoon and tied his skiff to one of the pontoons. By prearrangement he met his wife on defendant's premises. They decided to go for a ride in the husband's skiff and proceeded toward the water. They walked down the ramp leading to the water and as the wife stepped from the ramp to one of the pontoons her left foot went through the surface of the pontoon which was constructed of iron or steel. The point on the pontoon at which the penetration occurred was rusted and pieces of rust were subsequently removed from her leg.

The trial justice held that the wife was an invitee of defendant and thus he owed to her a duty of maintaining the premises in a condition reasonably safe for the purposes of the invitation. See Stapleton v. Hyman, 69 R.I. 466, 35 A.2d 6. He then found that plaintiffs had sustained the burden of establishing that defendant had negligently breached the duty owed. The principal contentions on this appeal are that as a matter of law the wife was not an invitee on that portion of the premises where she was injured and that there is in the record no evidence of negligence.

With respect to findings of fact, our review herein is governed by the rule that we will not disturb findings by a trial justice sitting without a jury unless it appears that such findings are clearly wrong. Sal's Furniture Co. v. Peterson, R.I., 133 A.2d 770. We will first consider the question of whether the trial justice was clearly wrong in concluding that the wife was an invitee on that portion of the premises which included defendant's wharf and pontoons.

The evidence establishes that defendant maintained a building for the purpose of selling to the general public sea food to be consumed thereon. On the day in question the plaintiff wife had something to eat on the premises. It is also clear from the record that her husband had been expressly permitted to use that portion of defendant's premises where the wharves and pontoons were located. From an examination of the record it appears that there were no obstructions or similar apparent separations between the portion of the premises where the retail business was conducted and the portion where the wharves and pontoons were located.

During the trial of these cases and in the briefs and arguments before us much stress was placed upon the nature of the express invitation to the husband for the use of the water-front area. There was testimony by him that shortly after he entered into his arrangement with defendant for the use of the premises to moor his skiff, he specifically received permission to bring other persons with him upon the pontoon and the surrounding area. The defendant denied having given specific permission for the use of the aforesaid water-front area by persons other than the husband.

The trial justice found as a fact that defendant had made a specific authorization for the use of the water-front area by persons accompanying the husband. In his decision he stated that the nature of the permission for the use of the premises was general and vague and would reasonably indicate to the husband a willingness on the part of defendant to permit his property to be used without apparent restriction. The trial justice specifically stated that from his view of the testimony any person who was permitted by the husband to enter his skiff was within the broad unlimited terms of defendant's express invitation. It is in the light of these conclusions of fact that we must consider defendant's argument that there is no evidence in the record upon which to found an invitation to the wife.

It is clear that a business invitation to enter premises is not always limited to the individual with whom the invitor is transacting business. Milliken v. Weybosset Pure Food Market, 71 R.I. 312, 44 A.2d 723. This court has also held that an invitation for nonbusiness purposes may exist where affirmative conduct on the part of the landowner has indicated a willingness to permit such use. Reddington v. Getchell, 40 R.I. 463, 101 A. 123. A determination of what portions of the premises are included within an invitation in a particular case is a question of fact. Milliken v. Weybosset Pure Food Market, supra. Upon a review of the record it is our opinion that there was ample evidence to support the conclusion that defendant's general invitation included a permission for the plaintiff wife to use that portion of the premises upon which she was injured.

It is contended that the invitation to her husband for the use of the wharf area was an invitation for business purposes only and that the invitation was limited to such uses of that portion of the property as were directly connected with the husband's shellfishing activities. As we understand defendant's argument, it is further urged that the wife's presence in the wharf area was of no pecuniary benefit to defendant, was in no way connected with the shellfishing activities of her husband for which the invitation was extended, and that therefore her status in the wharf area was that of a trespasser or a licensee. The defendant's argument assumes that the invitation which was extended was limited to the incidents of the business purpose for which it was issued, to wit, shellfishing. The difficulty with this argument is that the evidence does not support such conclusion and the trial justice specifically found otherwise.

While it is true that defendant permitted the use of the pontoons primarily for the purpose of transacting a wholesale shellfishing business, there is testimony which indicates that defendant specifically permitted a general use of the area without apparent limitation. If a general and ambiguous express invitation is sought to be limited to a particular portion of the premises, then the invitor must make the limitation apparent to the invitee either expressly or by obstructing or otherwise segregating the limited portion. Milliken v. Weybosset Pure Food Market, supra.

Based upon the testimony accepted by the trial justice that defendant told the husband it was permissible for him to bring other persons with him into the wharf area, we hold that his wife was an invitee. Having so concluded, it follows that defendant owed the wife a duty to use reasonable care to keep the premises in a condition safe for the purposes of the invitation. Stapleton v. Hyman, supra; Langley v. F. W. Woolworth Co., 47 R.I. 165, 131 A. 194.

We will next consider the question as to whether there is in the record before us any evidence which would permit the trial justice to find that plaintiffs had sustained the burden of proving defendant's negligence. The finding of negligence in these cases is based upon alternative grounds: First, that specific negligence can be inferred from the evidence; and secondly, that even if no specific negligence has been proved, the existence of negligence is reasonably inferable under the doctrine of exclusive control as applied in Coia v. Eastern Concrete Products Co., 85 R.I. 128, 127 A.2d 858. If plaintiffs could sustain a burden of proof herein without a showing of specific negligence, then this appeal would be disposed of. We will therefore first consider whether in the circumstances negligence can be inferred without a specific showing.

In the Coia case this court applied the doctrine that proof of a specific act or omission is not necessary to support a finding of negligence where it is shown that the defendant was in exclusive control of the instrumentality which caused the injury and where the injury would not normally occur in the...