Laube v. Stevenson

• Decision Date: 30 January 1951
• Citation: 78 A.2d 693,25 A.L.R.2d 592,137 Conn. 469
• Court: Connecticut Supreme Court
• Parties: , 25 A.L.R.2d 592 LAUBE v. STEVENSON et al. Supreme Court of Errors of Connecticut

Page 693

78 A.2d 693

137 Conn. 469, 25 A.L.R.2d 592

LAUBE v. STEVENSON et al.

Supreme Court of Errors of Connecticut.

Jan. 30, 1951.

J. Warren Upson, Waterbury, (Kenyon W. Greene, Waterbury, on the brief) for the appellants (defendants).

Alfred L. Finkelstein, Waterbury, Helen L. McDonough, Naugatuck, for the appellee (plaintiff).

Before BROWN, C. J., and BALDWIN, INGLIS, JENNINGS and O'SULLIVAN, JJ.

BROWN, Chief Justice.

The plaintiff brought this action against her daughter and the latter's husband to recover for personal injuries sustained by a fall on a cellar stairway in the defendants' home, alleged to have been due to their negligence. Judgment was rendered for the plaintiff against both defendants and they have appealed.

This summary of the court's finding as modified by us is sufficient to present the questions determinative of the appeal: The defendants owned a one-family house in Naugatuck where they lived with their infant child. A stairway led from the kitchen to the cellar. On January 27, 1949, the upper portion of the stairway was in a defective and dangerous condition in that the landing at the top and the step below it were covered with a smooth, slippery linoleum, there was no handrail on either side of the upper half of the flight, there was no light fixture by which to light the top of the stairway, and near the middle of the front edge of the step below the landing the nosing was broken away for a space one-half by one and one-half inches at one point and one-fourth by one and one-half inches at another. This condition had existed and been known to both defendants during the entire year and a half they had owned the property and they had done nothing to remedy it. At the time of the plaintiff's fall, a vacuum cleaner stood on one side of the landing and an ironing board was hanging loose on the wall on the other side, as the defendants well knew.

Upon her occasional visits with the defendants in response to their standing invitation, the plaintiff, who lived in White Plains, New York, assisted with the household duties and the care of the baby. During such a visit, in the early afternoon of January 27, 1949, the defendant wife, while in the yard, asked the plaintiff to go down the cellar stairs to get a blanket and to bring it to her for the baby. The plaintiff had used the stairs but once, a year and a half before, and had no knowledge of the existence of the dangerous condition described above. Although the defendants knew of this condition and also that the plaintiff was not aware of it, neither of them gave her any warning. The plaintiff had no occasion or desire to go down the stairway and would not have done so except for the specific request made by the defendant wife. Pursuant thereto, the plaintiff opened the door to the cellar and found that the landing and the top of the stairs could not be illuminated by artificial light. Although by reason of such light as came through the opened door and from cellar windows the stairway was not entirely dark, there was not enough light to enable her to distinguish everything on and about the stairway readily.

She proceeded carefully onto the landing and felt for a handrail. For lack of it, she tried to steady herself by putting a hand on the wall, but without success, for her right hand came in contact with the vacuum cleaner, and her left with the ironing board; neither gave her firm support. She then stepped from the landing onto the step below. The sole of her shoe struck the break in the nosing and she was thrown violently to the bottom of the stairs, sustaining the serious injuries complained of. The defendants could not reasonably have assumed that the plaintiff knew of or by a reasonable use of her faculties would observe the defective conditions described.

Upon these facts, the court was warranted in its conclusion that the defendants had sustained neither the defense of assumption of the risk nor that of contributory negligence. It further concluded that the defendants are liable to the plaintiff, whether she is held to have been an invitee or merely a licensee, as the defendants concede she was. Upon the facts found, her visit can only be characterized as social. For reasons which we will explain, it becomes necessary first to determine whether or not the plaintiff was what is termed an invitee, that is, a business visitor. If she was, the defendants are liable to her for breach of their duty to her as such. Whether one who visits a defendant's property for a purpose social in its nature as distinguished from a business purpose is an invitee and not a mere licensee is a question never passed upon by this court. There appears, however, to be a rather unusual unanimity of authority in other jurisdictions that such a visitor is a gratuitous licensee only and not a business visitor or invitee.

'A business visitor is a person who is invited or permitted to enter or remain on land in the possession of another for a purpose directly or indirectly connected with business dealings between them.' Restatement, 2 Torts § 332. 'A licensee is a person who is privileged to enter or remain upon land by virtue of the possessor's consent, whether given by invitation or permission.' 2 id. § 330. 'A gratuitous licensee is any licensee other than a business visitor as defined in § 332.' 2 id. § 331. As is further pointed out by comment a, 3, under § 331, the phrase 'gratuitous licensee' includes 'social guests who, in a sense, are persons temporarily adopted into the possessor's family.' These definitions make clear the fundamental distinction between a business visitor and a gratuitous licensee, and the comment quoted precisely describes the situation of the plaintiff in the instant case. The following authorities serve to illustrate the application of the above definitions to the factual situations presented and support our conclusion that the present plaintiff was a gratuitous licensee and not an invitee or business visitor. Gudwin v. Gudwin, 14 Conn.Supp. 147, 149; Mitchell v. Legarsky, 95 N.H. 214, 216, 60 A.2d 136; Cosgrave v. Malstrom, 127 N.J.L. 505, 508, 23 A.2d 288; Page v. Murphy, 194 Minn. 607, 613, 261 N.W. 443; Bugeja v. Butze, Sup., 26 N.Y.S.2d 989, 990; Biggs v. Bear, 320 Ill.App. 597, 599, 51 N.E.2d 799; Comeau v. Comeau, 285 Mass. 578, 579, 189 N.E. 588, 92 A.L.R. 1002; Greenfield v. Miller, 173 Wis. 184, 189, 180 N.W. 834, 12 A.L.R. 982; Southcote v. Stanley, 1 H. & N. 247, 250, 156 Eng.Rep. 1195; Pollock, Torts (14th Ed.) p. 422; notes, 12 A.L.R. 987, 92 A.L.R. 1005; 38 Am.Jur. 778, § 117; 65 C.J.S., Negligence, § 32e, 489.

While the rule determinative of the landowner's liability to a gratuitous licensee has been stated in varied terms in the different jurisdictions, as appears from the use of the expressions 'gross negligence,' 'wilful and wanton act' and 'active negligence' in some of the cases cited above, the rule in this state is clear and well established. It is true that 'An owner of land ordinarily owes no duty to a licensee, any more that he does to a trespasser, to keep his premises in a safe condition, because the licensee or trespasser must take the premises as he finds them and assumes the risk of any danger arising out of their condition.' Hayes v. New Britain Gas Light Co., 121 Conn. 356, 357, 185 A. 170, 171. 'When, however, the presence of a licensee upon the property of another becomes known to the owner, the latter may owe to him a duty not to subject him to danger.' Deacy v. McDonnell, 131 Conn. 101, 104, 38 A.2d 181, 183. This is true not only where the defendant engages in some activity by which the plaintiff may be endangered. The owner of premises may also be under a duty to warn a licensee, of whose presence he becomes aware, of dangerous conditions which the owner knows of but which he cannot reasonably assume that the licensee knows of or by a reasonable use of his faculties would observe. Ward v. Avery, 113 Conn. 394, 396, 155 A. 502, 503; Deacy v. McDonnell, supra; Olderman v. Bridgeport City Trust Co., 125 Conn. 177, 182, 4 A.2d 646,...