LeBase v. Britz, 69--393

• Decision Date: 09 October 1970
• Docket Number: No. 69--393,69--393
• Parties: Shelby Jay LeBASE, a minor, by and through her next friend, Delores LeBase, and Delores LeBase, individually, Appellants, v. Joseph M. BRITZ and Sylvia Britz, his wife, Appellees.
• Court: Florida District Court of Appeals

Page 819

240 So.2d 819

Shelby Jay LeBASE, a minor, by and through her next friend, Delores LeBase, and Delores LeBase, individually, Appellants, v. Joseph M. BRITZ and Sylvia Britz, his wife, Appellees.

No. 69--393.

District Court of Appeal of Florida, Fourth District.

Oct. 9, 1970.

Rehearing Denied Dec. 7, 1970.

Charles A. Sullivan, of Sullivan & Burch, Vero Beach, for appellants.

George H. Moss, II, and John R. Beranek, of Jones, Adams, Paine & Foster, West Palm Beach, for appellees.

WALDEN, Judge.

This is a suit for personal injuries. It was brought by a minor plaintiff and her mother on account of her derivative claim. Begun before a jury, the trial court directed a verdict at the end of the plaintiffs' case in favor of the defendants. Final judgment being entered thereupon for the defendants, the plaintiffs appeal. We reverse.

The eight year old minor plaintiff was visiting in the defendants' home. After dinner and after dark she went out into the yard to play hide and seek with the defendants' children. While so engaged, she ran into a Spanish Yucca, or Bayonnet, plant. Well known to Florida, it is principally characterized by the needle points at the end of each of its many green blades or leaves. One of its needle points pierced the minor plaintiff's eye, causing permanent blindness to it.

The plant was located about six to eight feet beyond the defendants' property line on an adjacent lot. It had been planted by others to obscure garbage cans. The defendants at the time in question used it to obscure their garbage cans, which were kept by them on the adjacent lot. The defendants maintained a stepping stone walkway from their back door to the garbage can-Yucca plant area situated on the adjacent lot.

As a basis for its ruling, the trial court announced '* * * (T)he court has ruled as a matter of law that there has been no showing of negligence or violation of any duty owed by the defendants to the plaintiffs. * * *'

The procedure and criteria binding upon the trial court in considering a motion for directed verdict are well known. 232 Fla.Jur., Trial, § 83 et seq. We believe that when the evidence is considered in this light, it is clear that a question for jury determination is presented.

The minor plaintiff was, of course, a social guest and hence a licensee. Goldberg v. Straus, Fla.1950, 45 So.2d 883; Lowery v. Rosenburg, Fla.App.1962, 147 So.2d 321; Gale v. Tuerk, Fla.App.1967, 200 So.2d 261. The duty of a host to his guest is to refrain from wanton negligence or willful misconduct which would injure him or to refrain from intentionally exposing him to danger and there may be a further duty to a licensee to warn him of a defect or condition known to the owner or occupant to be dangerous when such danger is not open to ordinary observation by the licensee. McNulty v. Hurley, Fla.1957, 97 So.2d 185; Crutchfield v. Adams, Fla.App.1963, 152 So.2d 808; Emerson v. Holloway Concrete Products Co., 5 Cir., 282 F.2d 271; Adler v. Copeland, Fla.App.1958, 105 So.2d 594; Tomei v. Center, Fla.App.1959, 116 So.2d 251; Pinson v. Barlow, Fla.App.1968, 209 So.2d 722; Goldberg v. Straus, Fla.1950, 45 So.2d 883. More particularly, the rule is stated in Goldberg v. Straus, supra, as follows:

'By the great weight of authority, where one is invited to come upon the premises of another as a guest for social purposes, the relation created between the parties is, in a lgeal sense, one of licensor and licensee and not one of invitor and invitee. Harper on Torts, 3rd Ed. Sec. 98. In such circumstances the rule is that the guest must take the premises as he finds them; subject to the exception, however, that The host will be held to liability for injuries caused to his guest by a natural or artificial condition on the premises, where the host has actual knowledge of the condition and realizes that it involves an unreasonable risk to his guest and has reason to believe that the guest will not discover the condition or realize the risk, by the exercise of reasonable care, yet despite such circumstances, permits the guest to enter or remain on the premises, without exercising reasonable care to make the condition reasonably safe, or to warn the guest of the condition and the risk involved therein.' (Emphasis supplied.)

For the degree of solicitude extended by courts in host-social guest circumstances, see Ladenson v. Eder, Fla.1967, 195 So.2d 211.

The quantum of degree of care owed to a licensee varies according to the circumstances. One of the most pertinent of which is the age and maturity or immaturity of the licensee. Gale v. Tuerk, supra, see also 65 C.J.S. Negligence § 63(57). Another...