Lubenow v. Cook
| Decision Date | 27 March 1951 |
| Citation | 79 A.2d 826,137 Conn. 611 |
| Court | Connecticut Supreme Court |
| Parties | LUBENOW v. COOK. Supreme Court of Errors of Connecticut |
Charles Tomasino, New Haven, Joseph M. Brandon, New Haven (David E. Fitz-Gerald, Jr., and Bernard Insler, New Haven, on the brief), for the appellant defendant.
J. Stephen Knight, New Haven, Lewis E. Caplan, New Haven, (Max H. Schwartz, New Haven, on the brief), for the appellee plaintiff.
Before BROWN, C. J., and JENNINGS, BALDWIN, INGLIS and O'SULLIVAN, JJ.
The principal question on this appeal is whether the charge adequately stated the distinction between a business visitor on the one hand and a licensee such as a social guest on the other.
The facts relative to the question of the plaintiff's status, as they appear from the claims of proof, were not in serious dispute except as hereinafter indicated. The defendant, on September 18, 1947, was the owner and occupant of a dwelling house on the north side of Court Street in West Haven. A porch ran across the front of the house. A small front lawn lying between the entrance walk and a driveway east of the house was inclosed by a galvanized wire fence from twelve to sixteen inches high. The fence extended from the east end of the porch steps along the easterly side of the entrance walk to the sidewalk, thence along the sidewalk to a tree in the southeast corner of the lawn and thence northwesterly to the southeast corner of the porch.
The plaintiff's daughter Helen was the wife of the defendant's son Chelsea. The young couple had a three-weeks-old baby. They had been staying with the plaintiff, who lived a short distance from the defendant. It had been decided that Helen, Chelsea and the baby would move to the home of the defendant for an indefinite stay. The moving was accomplished by automobile in two trips; Chelsea's brother Stuart drove. On the first trip the car was parked in the street and the plaintiff carried the baby up the entrance walk and into the defendant's house. The claim of proof that the defendant knew that a second trip was planned was disputed, but there was evidence to support it. On the second trip the car was parked in the driveway to the east of the lawn. The occupants of the car were Stuart and Chelsea Cook and the plaintiff. The plaintiff, carrying a tray of glass jars, followed the two men out of the car and started to walk after them across the lawn towards the porch. There was some dispute as to just how dark it was on the lawn, but in any event the plaintiff did not notice the wire fence that extended from the tree to the porch. She tripped on it, fell and was injured.
We have very recently, in Laube v. Stevenson, 137 Conn. 469, 473, 78 A.2d 693, 695, had occasion to examine the distinction which the law recognizes between a business visitor and a gratuitous licensee and the nature of the duty which a possessor of land owes to each. In that case we adopted the definitions stated in the Restatement of the Law of Torts: '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 gratuitous licensee is any licensee other than a business visitor as defined in § 332.' 2 id. § 331. 'The phrase 'gratuitous licensee' includes * * * [s]ocial guests * * *.' 2 id. § 331, comment a(3). We held that, whereas the duty which a possessor of land owes to a business visitor is to use reasonable care to keep his premises reasonably safe, the duty which he owes to a gratuitous licensee such as a social guest is to use reasonable care, when the licensee's presence becomes known, both to refrain from actively subjecting him to danger and to warn him of dangerous conditions which the possessor knows of but which he cannot reasonably assume that the licensee knows of or by reasonable use of his faculties would observe.
In the present case, the defendant requested the court to charge: 'Where a guest is invited to come upon the premises of a host for social or benevolent purposes, the relation created is not that of invitee or [sic] invitor in a business sense but that of licensee or [sic] licensor.' The court did not...
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