Husser v. School Dist. No. 11 in El Paso County

Decision Date25 April 1966
Docket NumberNo. 20814,20814
Citation413 P.2d 906,159 Colo. 590
PartiesOrle E. HUSSER, Plaintiff in Error, v. SCHOOL DISTRICT NO. 11 IN the COUNTY OF EL PASO and State of Colorado, and William H. Preston, Defendants in Error.
CourtColorado Supreme Court

Edwin Strand, Otto K. Hilbert, Colorado Springs, for plaintiff in error.

Murray, Baker & Wendelken, Colorado Springs, for defendant in error School Dist. No. 11 in El Paso County.

Rector & Kane, Colorado Springs, for defendant in error William H. Preston.

FRANTZ, Justice.

Husser sued the School District and Preston for damages for personal injuries which, he alleged, resulted from the negligence of the defendants. Besides the general issue, the defendants pled affirmative defenses of contributory negligence, assumption of risk, and unavoidable accident.

At the conclusion of the evidence, the defendants moved for a directed verdict, and the trial court, in granting the motion stated:

'The Court orders a verdict in favor of the defendant, William Preston, for the reason no negligence is shown on his part for the reason he owed no duty to the plaintiff. It also follows then that the Court directs a verdict in favor of School District No. 11. Inasmuch as this is a ruling upon the law and not upon the facts the Court would declare that this is a final order, and that it is not necessary for the plaintiff to file any motion for new trials or rehearings. * * *'

The undisputed facts show that Husser was the owner and operator of a florist shop with his wife as copartner. On the 29th of November, 1959--a bright fall Sunday--Husser, in response to an order previously placed with his shop, delivered two floral displays to the district's new high school auditorium in Colorado Springs for the dedication ceremony which was to take place on that day. Husser attempted to enter the building but found the door locked. After a short time, defendant Preston, principal of the school, appeared from inside the building and bade him enter. Husser then proceeded to water the displays in the foyer and prepare them for placement.

At this point the testimony becomes conflicting.

Husser testified that Preston told him the building was so new he did not know where to turn on the lights in the auditorium. Preston denied this, and said that he told Husser to leave the displays in the foyer but that Husser insisted on putting them on the stage. Preston did agree, however, that he undertook to lead Husser to the stage and that, upon their arrival, he, Preston, stepped aside and allowed Husser to go past him and a rostrum in the center of the stage. At this point, Husser, in pivoting and shifting his weight to his side and back, fell into the orchestra pit.

In his testimony, Husser stated that the auditorium was dark, but that there was some light coming from aisle chair lamps and from what he termed a skylight or an overhead artificial light on the stage. He testified that he could see the stage as he approached it down the center aisle, and that he could also see the rostrum in the center of the stage, but that he could not and did not see the orchestra pit once he was upon the stage.

Was Husser, under the circumstances, an invitee, as he contended, or a licensee, as contended by the defendants?

An owner's duty of care varies according to the relationship he bears to the person on his premises. Where the latter's status is equivocal by reason of conflicting evidence and the legitimate inferences which may be drawn therefrom, it becomes the duty of the jury to determine whether he is an invitee or a licensee. Perl v. Cohodas, Peterson, Paoli, Nast Co., 295 Mich. 325, 294 N.W. 697; Skerl v. Willow Creek Coal Co., 92 Utah 474, 69 P.2d 502; 65 C.J.S. Negligence § 272; cf. Rocky Mountain Fuel Co. v. Tucker, 72 Colo. 308, 211 P. 383.

In the consideration of a motion for directed verdict, the trial court ought to consider the evidence and legitimate inferences to be drawn therefrom in the light most favorable to the party opposing the motion. And this obligation of the trial court applies to the evidence and inferences concerning the relationship between Husser and the defendants.

It is axiomatic that the party who moves for a directed verdict admits, for the purpose of testing the motion, the truth of all evidence (and inferences to be drawn therefrom) favorable to his adversary. Parker v. City and County of Denver, 128 Colo. 355, 262 P.2d 553, 37 A.L.R.2d 1177. Thus tested, the motion for directed verdict here should have been denied, for testimony such as the following made such motion unavailing because, taken as true, it established Husser as an invitee.

The plaintiff testified in part as follows:

'Question: On that day did you go to Wasson High School?

'Answer: I did.

'Question: Why?

'Answer: We had orders for two floral arrangements to be placed upon the stage of the...

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6 cases
  • Mile High Fence Co. v. Radovich
    • United States
    • Colorado Supreme Court
    • September 20, 1971
    ...the land, caused by a dangerous condition while the work is in his charge. 2 Restatement of Torts 2d, §§ 383, 384.2 Husser v. School Dist. No. 11, 159 Colo. 590, 413 P.2d 906; Colo.-Wyo. Ry. Co. v. Wheelock Bros. Co., 155 Colo. 406, 395 P.2d 1; Staley v. Security Athletic Assoc., 152 Colo. ......
  • Vigil v. Franklin
    • United States
    • Colorado Supreme Court
    • November 30, 2004
    ...1971, landowner liability turned on the status of the plaintiff — invitee, licensee, or trespasser. See, e.g., Husser v. School Dist. No. 11, 159 Colo. 590, 413 P.2d 906 (1966). In that year, this court overturned that formula and reinstated general negligence principles for assessment of l......
  • Lakeview Associates, Ltd. v. Maes
    • United States
    • Colorado Supreme Court
    • November 28, 1995
    ...convenience or to advance the person's own interests, with the permission or consent of the landowner. Husser v. School Dist. No. 11, 159 Colo. 590, 594-95, 413 P.2d 906, 909 (1966). In contrast, an invitee was defined as a person who enters or occupies property of another for the purpose o......
  • SW v. Towers Boat Club, Inc.
    • United States
    • Colorado Court of Appeals
    • April 26, 2012
    ...party was an invitee, licensee, or trespasser. See [Mile High Fence, 175 Colo. at 541, 489 P.2d at 311]; Husser v. School Dist. No. 11, 159 Colo. 590, 593, 413 P.2d 906, 908 (1966). Under the common law, the landowner's liability depended exclusively upon the injured party's status. For exa......
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