Lemon v. Busey
| Decision Date | 08 November 1969 |
| Docket Number | No. 45436,45436 |
| Citation | 461 P.2d 145,204 Kan. 119 |
| Parties | Harry LEMON, Father and Next of Kin of Michelle Lemon, Deceased, Appellant, v. Rodney H. BUSEY, Ralph E. Everitt and L. Irvin Morgan, Trustees of the First Baptist Church of Wichita, a Religious Corporation and Montgomery Elevator Company of Kansas, a Corporation, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. In an action for the wrongful death of a five year old child brought on the ground that one or all of the defendants were guilty of negligence by leaving a door in a church building unlocked which led to the roof, by means of which the child gained access to the roof and fell to the ground causing her death, the trial court sustained the defendants' motion for summary judgment holding the child to be a licensee on the church premises, by reason of which the defendants owed her no duty of ordinary care. In affirming the trial court, on appeal the record is examined and it is held: (a) The child was a 'licensee' and not an 'invitee' in the legal sense of that term; and (b) the defendants owed no greater duty of care to the child than it would have owed to an adult under similar circumstances.
2. The owner or occupier of property owes an 'invitee' a duty to exercise ordinary care for his safety, but the owner or occupier of property owes to a 'licensee' only the duty to avoid willfully, intentionally or recklessly injuring him.
3. An 'invitee' is either a public invitee or a business visitor.
4. A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.
5. A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.
6. The fact that a person is invited to visit the premises of another does not make him a public invitee. The purpose of his visit determines his status.
7. The meaning of the word 'invitee' is more limited than that of 'invitation' in the popular sense, and not all of those who are invited to enter upon land are invitees.
8. A licensee is a person who is privileged to enter or remain upon premises by virtue of the possessor's consent, whether given by invitation or permission.
9. On facts more particularly related in the opinion, where a person is injured on church premises but is not attending any church-sponsored function for which the church building is open to the public, or is not on the church premises for any purpose related to the business of the church, the status of such person is that of a licensee.
10. Where a five year old girl occupies the status of a licensee on church premises the possessor or occupant owes no duty of care to such infant licensee except to refrain from willfully, intentionally or recklessly injuring her, the same as if such licensee had been an adult.
Orval L. Fisher, Wichita, argued the cause, and Jack Glaves, Edward Weil, Gerald L. Michaud, Russell Cranmer, M. William Syrios, Jim Lawing, Kenneth Ingham and Bradley Post, Wichita, were with him on the brief, for appellant.
H. W. Fanning, Wichita, argued the cause and was on the brief for appellees, Trustees of The First Baptist Church of Wichita.
John Prather, Wichita, argued the cause, and Wayne Coulson, Paul R. Kitch, Dale M. Stucky, Donald R. Newkirk, Gerrit H. Wormhoudt, Philip Kassebaum, John E. Rees, Robert T. Cornwell, Willard B. Thompson, David W. Buxton, John T. Conlee, Richard I. Stephenson, John E. Matson and Douglas D. johnson, Wichita, were with him on the brief, for appellee, Montgomery Elevator Co. of Kansas.
This is an action for the wrongful death of a five year old girl as a result of a fall from the fifth floor roof of a church building. It is brought against the trustees of the church and the Montgomery Elevator Company, claiming that one or all of the defendants were guilty of negligence by leaving a door unlocked which led to the roof, by means of which the child gained access to the roof.
The defendants' motion for summary judgment was sustained at the pretrial conference, the trial court holding that the child was a licensee on the church premises, by reason of which the defendants owed her no duty of ordinary care. Appeal has been duly perfected by the plaintiff.
The underlying question on appeal involves the duty of care owed by the defendants to Michelle Lemon.
The material facts in this case are not in dispute. The action was commenced by Harry Lemon (plaintiff-appellant) as father and next of kin of Michelle Lemon, deceased, who was five years old at the time of her death.
Leta Walker, the deceased's grandmother, was babysitting with Michelle Lemon on April 9, 1965, and took the child with her to The First Baptist Church of Wichita where Mrs. Walker was employed part time. Mrs. Walker was a member of the church congregation, but neither Michelle nor her parents were members, nor were they affiliated with the church in any way, although the parents had formerly been members. The child had accompained her grandmother to work at the church building in the past and had attended Sunday School there, but had never been in the care of the nursery. The child was not on the church premises for any church function or business at the time in question, nor was she in any manner under the supervision of church employees. The child was brought to the church for the convenience of her grandmother and parents. No church meetings were being conducted or in session at the time of this incident, and no children were being supervised in the church nursery on the day in question.
While Mrs. Walker was busy operating a duplicating machine, Michelle went to play in the hall with her grandmother's permission. The child was next seen falling from the south side of the roof on the fifth floor of the educational building of the church. The injuries sustained resulted in her death. No evidence was presented as to how the child got onto the roof.
The child could have reached the roof of the church building either by means of a fire escape or by means of an unlocked door which allowed access onto the roof. For purposes of this appeal it will be assumed she reached the roof by means of the latter route.
The Montgomery Elevator Company had a service contract to service the church elevators. On the day in question the door to the roof, which was normally kept locked, had been unlocked to permit a Montgomery employee to work in the elevator head house located on the roof. For reasons which are in dispute this door was not relocked. The plaintiff contends and alleges in his petition that the failure to relock this door constitutes ordinary negligence on the part of one of all of the defendants herein and subjects them to liability for the child's death. The plaintiff also claimed in his petition that the defendants were maintaining an attractive nuisance, but this contention has been abadnoned in the plaintiff's brief on appeal. No allegation was made in the petition that any one of the defendants was guilty of willful, intentional or reckless conduct. No allegation was made in the petition that the church building was a dangerous instrumentality.
We shall continue to refer to the parties throughout this opinion as plaintiff and defendants.
The primary contention of each of the defendants herein is that the deceased child was on the church premises as a licensee, and as such they did not owe her a duty of ordinary care, but that they owed only a duty to refrain from willfully, recklessly or intentionally injuring the child. This was the basis upon which the trial court entered summary judgment for the defendants.
The plaintiff, on the other hand, contends there are factual issues in dispute in this matter. He argues in his brief:
The plaintiff argues further the acquiescence of the church in the use of the church premises by the public, and the Lemon child in particular, amounted to an invitation to the deceased child who thus had the status of a licensee by invitation, if not, in fact, an invitee, and in either event a duty of ordinary care was owed by the defendants.
If a duty to exercise ordinary care was owed to the child, the judgment of the trial court was erroneous. If the defendants did not owe Michelle Lemon the duty of ordinary care, the judgment of the trial court was correct.
Was Michelle Lemon an invitee or a licensee?
The plaintiff's approach to this case discloses a confusion of theories.
This court has made it clear that an owner of property owes an invitee a duty to exercise ordinary care for his safety. The owner of property owes a person having any other status, whether that of a trespasser, a licensee, a social guest, or a mere passerby, only the to avoid willfully, intentionally or recklessly injuring him. Here no claim is made that the defendants violated any duty other than to exercise ordinary care.
The crucial fact that determines Michelle Lemon's status is not whether she was invited to be on the church premises at the time of the occurrence, but rather what her purpose was for being there. In Restatement, Second, Torts § 332, an 'invitee' is defined as follows:
'(1) An invitee is either a public invitee or a business visitor.
'(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land...
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