Hamilton v. Brown

• Citation: 207 S.E.2d 923,157 W.Va. 910
• Decision Date: 02 July 1974
• Docket Number: No. 13410,13410
• Court: West Virginia Supreme Court
• Parties: James HAMILTON, infant, etc., et al. v. Anderson H. BROWN.

Page 923

207 S.E.2d 923

157 W.Va. 910

James HAMILTON, infant, etc., et al. v. Anderson H. BROWN.

No. 13410.

Supreme Court of Appeals of West Virginia.

July 2, 1974.

Dissenting Opinion Aug. 15, 1974.

Syllabus by the Court

Mere permissive use of the premises, by express or implied authority ordinarily creates only a license, and as to a licensee, the law does not impose upon the owner of the property an obligation to provide against dangers which arise out of the existing condition of the premises inasmuch as the licensee goes upon the premises subject to all the dangers attending such conditions.

Andrew J. Goodwin, Charleston, for appellants.

Willard L. Brown, Catsonis & Linkous, Leo Catsonis and Thomas L. Linkous, Charleston, for appellee.

NEELY, Justice:

This is an appeal from a final order of the Circuit Court of Kanawha County affirming an order of the Common Pleas Court of Kanawha County by which the trial court set aside a jury verdict for the plaintiffs and directed a verdict for the defendant.

The action below was for personal injuries arising from an accident which occurred on August 22, 1966 when the infant plaintiff, James Hamilton, then thirteen years old, was visiting his grandfather, James Brooks, who lived near Dunbar, West Virginia. The infant plaintiff and several of his young friends from the Dunbar area were returning from a small concession known locally as the 'Shack' or 'Stand' which sold food, soft drinks, and operated pinball machines for the amusement of the children in the neighborhood. The concession was operated on property owned by the defendant, Anderson H. Brown, who rented the premises to a Henry Dickerson, who managed the concession.

When the boys left the 'Shack' they elected not to proceed west along Route 25 approximately 153 ft. to the Brooks driveway, and then down the driveway approximately 80 ft. father to the Brooks house, but rather chose to take a diagonal route down a footpath from the rear of the 'Shack', across a small stream via a footbridge, and then along the footpath to the Brooks home, a total distance of approximately 231 ft. As the boys crossed the footbridge spanning the stream a cement slab gave way causing the Hamilton boy to fall into the stream, which resulted in severe permanent injury to his right knee. The jury found in favor of the infant plaintiff in the amount of $15,000 and for the infant's mother in the amount of $3,200. The Court, nevertheless, sustained defendant's motion for a directed verdict under Rule 50, W.Va.R.C.P.

Plaintiffs contend, first, that as the defendant owned the 'Shack' on one side of the stream and the residential property on the other side of the stream, he knew or should have known that local people frequently used the bridge in question for ingress and egress to the 'shack.' Therefore the infant plaintiff contends that he was a business invitee of the defendant and was entitled to have the premises maintained in a reasonably safe condition for his use. The record clearly indicates that the bridge was appurtenant to the rental property on the opposite side of the stream from the 'Shack' and was unrelated to the operation of the concession. The plaintiff was unable to present evidence that persons patronizing the 'Shack' had received permission to use the footbridge as a shortcut and one of the plaintiffs' witnesses testified specifically that while he often used the bridge as a shortcut, he had no permission to do so.

Plaintiffs rely principally on two cases, both of which are distinguishable on the facts. The first is Morgan v. Price, 151 W.Va. 158, 150 S.E.2d 897 (1966), where the defendant owned a marina and held himself open to the general boating public by renting mooring spaces and selling gasoline for boats as well as ice cream, soda, and confections. The plaintiff in Morgan docked her boat at one of defendant's piers and was injured when she fell through a defective board as she alighted from her craft. This Court ruled that the jury could infer from the evidence that plaintiff entered the business premises by a normal means of ingress for patrons pursuant to an implied invitation to enter the premises from the water. There was no similar evidence in the case at bar. The entrance to the 'Shack' was on Route 25 and there is no evidence from which a court or jury could infer an implied invitation to use the footbridge.

The instant case is also distinguishable from the plaintiffs' second principal case, Brown v. De Marie, 131 W.Va. 264, 46 S.E.2d 797 (1948), which holds that a landlord who maintains common passageways for various tenants has a duty of care to keep the passageways in a safe condition for the tenants' invitees. In the case at bar, there is no question of a common passageway. The 'Shack' had a clear means of ingress and egress on Route 25 and the evidence demonstrates that the cement bridge in question was built exclusively for the convenience of the persons renting the house appurtenant to the bridge.

This case is much closer to the case of Wellman v. Christian, 147 W.Va. 189, 126 S.E.2d 375 (1962) in which the plaintiff was the mother of defendant's former wife who entered defendant's property to collect some canning jars which her daughter had left on the property. Before the plaintiff's visit, the defendant had cleaned the basement stairs and removed certain tacks which secured the rubber treads. When the plaintiff attempted to go down the steps, she slipped and fell. The court ruled that as a matter of law the plaintiff was a licensee and not an invitee as she was using the premises for her own purposes, and stated the law as follows at page 194, 126 S.E.2d at page 379:

"Mere permissive use of the premises, by express or implied authority ordinarily creates only a license.' (citation omitted) As to a licensee, the law does not impose upon the owner of the property an obligation to provide against dangers which arise out of the existing condition of the premises inasmuch as the licensee goes upon the premises subject to all of the dangers attending such entry.' (citation omitted)

While the Court recognizes that in the case at bar the defendant owned two types of real estate directly adjacent to one another, one a business establishment and the other a residential rental house and lot, there is no evidence in the record to indicate that the two pieces of property were operated together. Unlike the Morgan case, supra, there was no evidence that defendant's business the enhanced because of the availability of the bridge in question as a means of entering the 'Shack' and, therefore, the defendant cannot be held to have elevated the status of the infant plaintiff from that of licensee to that of invitee.

Accordingly, the judgment of the Circuit Court of Kanawha County is affirmed.

Affirmed.

HADEN, Justice (dissenting):

I respectfully dissent from the factual determinations and legal conclusions reached by the majority.

The record of this case discloses that the defendant landlord, Anderson H. Brown, owned one large piece of property in Dunbar, comprising several acres. On this property there was located two rental houses, a tavern and a confectionery known as the 'Shack' or 'Stand' which sold food, soft drinks, and operated pinball and other coin devices for the amusement of...