Kenney v. Grice, 22501

• Decision Date: 24 February 1970
• Docket Number: No. 22501,22501
• Citation: 465 P.2d 401,171 Colo. 185
• Parties: Michael P. KENNEY and Mary Kenney, Plaintiffs in Error, v. Alice M. GRICE, Defendant in Error.
• Court: Colorado Supreme Court

Page 401

465 P.2d 401

171 Colo. 185

Michael P. KENNEY and Mary Kenney, Plaintiffs in Error, v. Alice M. GRICE, Defendant in Error.

No. 22501.

Supreme Court of Colorado, En Banc.

Feb. 24, 1970.

Rehearing Denied March 6, 1970.

Wood, Ris & Hames, Thomas T. Crumpacker, Denver, for plaintiffs in error.

Donald W. Marshall, Brighton, for defendant in error.

DAY, Justice.

Alice Grice, plaintiff in the trial court, brought suit against Mary and Michael Kenney, defendants, who were her neighbors. The latter are here on writ of error directed to a judgment entered after a jury verdict against them and in favor of plaintiff in the amount of $8500.

The case arises out of an incident which occurred in the defendants' home. Plaintiff, while a guest there, fell down a flight of stairs and sustained serious injury. She had ascended the staircase at the invitation of Mary to see some second floor rooms. Michale was not at home at the time.

After looking at the rooms, plaintiff attempted to descend the stairs, and the accident occurred. The stairway in question is, according to the evidence, steep, with narrow steps; the top step tread measuring only 6 1/2 inches. It was from this step that plaintiff alleges she fell, though this was disputed.

The evidence reflects that plaintiff was holding her three year old son on her left hip at the time of the fall. She testified that she was holding onto the bannister with her right hand and proceeding very slowly. Her testimony includes the following account of what was said by the parties immediately before the accident:

'Mary, those steps look so steep; I won't let him (her son who had crawled upstairs after her) walk down them.

'Alice, be careful.

'Don't worry, Mary. I will.'

After the fall, when plaintiff was sitting at the bottom of the stairs, the testified that the following took place:

'* * * Mary came downstairs and she told me that she always goes down or she always went down those stairs sideways. And I said, 'Mary, now is a fine time to tell me.''

Mary also testified that she always descends the stairway in question 'sideways.' Further, after the incident Mrs. Kenney said, 'I came down very carefully myself, lest I fall on top of her.'

The plaintiff testified that she did not notice the steepness of the stairs on the way up because she was following the defendant. Defendant's testimony was that she followed the plaintiff up. It is agreed that the stairs were well lighted at the time of the accident. Plaintiff alleges that she at no time noticed that the stair treads were narrow.

Defendants base their assignments of error on three aspects of the case. On one--No. III--we reverse and comment on the others for guidance to the trial court on retrial.

I.

The defendants contend that the trial court erred in denying their motions for directed verdict at the close of all the evidence and in denying defendants' motion for judgment notwithstanding the verdict. The basis for each of these motions, they argue, was that the plaintiff failed to show a breach of any duty owed to Alice by the defendants and therefore no prima facie case of negligence was established.

We are faced, in what seems to be a case of first impression in Colorado, with the necessity of defining the duty to a social guest by a host with reference to the condition of the premises. Defendants herein urge that the proper standard of care to apply is that owed to a 'licensee'; the plaintiff urges that the duty of care toward an 'invitee' is the test by which to judge the defendants' responsibility.

In the case of a social guest it has been said: 'Here is an invitee who is not an invitee.' See 2 Harper & James, The Law of Torts, § 27.11 at 1476. Generally social guests have been classified as licensees. 2 Restatement of Torts 2d, § 330 at 175.

We note, however, that there is a trend toward abolishing the arbitrary classification of 'trespasser,' 'licensee,' and 'invitee' used in assessing the liability of an occupier of land. The case of Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561, relying upon a negligence statute of California, exemplifies the trend toward applying ordinary principles of negligence in case such as the one at bar.

'* * * The proper test to be applied to the liability of the possessor of land in accordance with section 1714 of the Civil Code is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others, and, although the plaintiff's status as a trespasser, licensee, or invitee may in the light of the facts giving rise to such status have some bearing on the question of liability, the status is not determinative.'

See also Taylor v. New Jersey Highway Authority, 22 N.J. 454, 126 A.2d 313, 62 A.L.R.2d 1211; Scheibel v. Lipton, 156 Ohio St. 308, 102 N.E.2d 453.

The contention by the plaintiff in the case at bar that a social guest is an invitee according to Colorado law is not supported by the cases cited by him. The case law, though not specifically deciding the question, indicates that a social guest would heretofore have been considered a licensee in Colorado. See Atkinson v. Ives, 127 Colo. 243, 255 P.2d 749; Field v. Sisters of Mercy, 126 Colo. 1, 245 P.2d 1167.

However, even if plaintiff were classified as a 'licensee' a Prima facie case of negligence on the part of defendants was established. In our view the same would also be true were the defendants' liability to be considered in the light of general principles of negligence.

2 Restatement of Torts 2d at page 210, describes the liability of possessors of land in a situation such as in the case at bar to be as follows:

' § 342. Dangerous Conditions Known to Possessor

A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,

(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and

(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and

(c) the licensees do not know or have reason to know of the condition and the risk involved.'

The evidence of a Dangerous condition on the premises of the defendant was not really disputed. The widths of the treads on the stairway were irregular, varying from 8 3/4 inches in width to only 6 1/2 inches. The narrowest, the 6 1/2 inch wide tread, was the top step which allegedly precipitated plaintiff's fall. This stairstep was too narrow to support a person using it in the usual manner in which one steps forward with the foot pointing ahead. It was necessary, in order to secure adequate support, to place the foot 'sideways' on the step. Plaintiff alleges that she was pitched down the stairway when, in the natural sequence of motion wherein her weight transferred from her heel forward to the ball of her foot, there was no support beneath the ball of the foot to sustain the weight of her body. Besides the testimony of the plaintiff as to the dangerous condition of the stairway, the jury was taken to the house to view the staircase.

There is no doubt that Mrs. Kenney knew of the condition herself. It is also clear that the defendant had reason to believe that plaintiff would not discover the condition or realize the risk and said, 'Alice, be careful'; but did not add that the step was narrow and did not caution plaintiff to step sideways on the step. The danger which the plaintiff preceived was the steepness of the stairs. This she expressed to the defendant, and this apparently is what she was concentrating upon. Whether defendant's admonishment to be careful was an adequate warning in view of the twin hazards--the steepness plus the narrowness of the tread--is for the trier of the fact to determine. Applying to this case the test in Rowland v. Christian, Supra, would pose the question, 'Did Mrs. Kenney in the management of the property owned by herself and her husband act as a reasonable person in view of the probability of injury to Mrs. Grice?' That too would be a matter for the jury, so the court did not err in denying the motions for directed verdict or judgment notwithstanding the verdict.

II.

The defendants contend that instructions Nos. 1 and 7, particularly were improper. With reference to No. 1, it was a recital of the pleadings and of the issues framed thereby. It could have been made more clear that...