Lunney v. Post

• Decision Date: 19 April 1971
• Docket Number: No. 69-807,69-807
• Citation: 248 So.2d 504
• Parties: Bernice LUNNEY and James Lunney, Appellants, v. Marjorie Merriweather POST, Appellee.
• Court: Florida District Court of Appeals

Page 504

248 So.2d 504

Bernice LUNNEY and James Lunney, Appellants, v. Marjorie Merriweather POST, Appellee.

No. 69-807.

District Court of Appeal of Florida, Fourth District.

April 19, 1971.

Question Certified May 18, 1971.

John A. Gentry, III, of Moyle, Gentry & Jones, West Palm Beach, for appellants.

John A. Beranek, of Jones, Paine & Foster, West Palm Beach, for appellee.

WALDEN, Judge.

Plaintiff-appellant, Bernice Lunney, in her amended complaint alleged she was injured in defendant's home while taking a Garden Club sponsored tour of defendant's property. The trial judge instructed the jury that plaintiff was a licensee and the jury found for defendant on that basis. We believe that instruction to be in error and therefore reverse.

Defendant, an honorary Garden Club member, graciously allowed her estate to be included in a Garden Club tour of showplace homes. Defendant received no tangible benefit. The Garden Club charged $5.00 for the tour which plaintiff paid.

Plaintiff arrived at defendant's home on a rainy afternoon. One of the rooms open to the public was the library. It was a dim day and the room was dimly lighted. None of defendant's numerous servants were present in the library. Defendant had installed a vinyl material over her valuable Oriental rugs. This vinyl was, according to testimony, unsuitable for the use assigned it. It bubbled and wrinkled when put into extensive use, as it was that day.

Mrs. Lunney walked into the library, left and returned with her friends. She tripped on the plastic and fractured her hip.

At the trial recovery hinged on the amount of care defendant would be expected to take in the given situation. If plaintiff was declared a licensee, defendant only had a duty to refrain from wanton negligence or willful misconduct. If plaintiff was a business invites, defendant had a duty to keep the premises in a reasonably safe condition. See McNulty v. Hurley, Fla.1957, 97 So.2d 185.

The jury, over objection, was instructed that plaintiff was a licensee. Plaintiff's counsel's request for instructions that plaintiff was a business invitee or alternatively that it was a decision for the jury, was denied. The jury found that defendant had not breached her duty to a licensee.

We will not deny that pre-1970 Florida law contains numerous decisions in the area of business invitees and licensees. We feel that in a case such as this a rigid adherence to those decisions would be unjust to plaintiff.

There are three theories concerning invitees in this country today. There are also definite trends.

1. The original Restatement of Torts divided visitors on land into three categories, trespassers, licensees and business invitees. A trespasser came without permission and was owed little duty of care. The licensee came with permission as a social guest. He must be protected against willful and wanton negligence. The business invitee came with an express or implied invitation and for the mutual economic or business benefit of the property owner. It was expected the premises would be made reasonably safe for him. Those states following this classification, including Florida until recently, have called the test for business invitees the Mutual benefit test. McNulty, supra; City of Boca Raton v. Mattef, Fla.1956, 91 So.2d 644.

Using this test customers in stores, hotel guests, even people visiting friends at hotels and hospitals have been held business invitees. But using the same test plaintiff would be a licensee. There was no mutual economic benefit, defendant received nothing, even though the Garden Club did.

It has been often stated that this test is too narrow. Our case bears this out. Clearly plaintiff was invited as a member of the public not as a social guest, and clearly she paid for this invitation. If this case involved a theater, a ball park with an admission fee, plaintiff would be a business invitee. Yet because of the set-up of the tour, and the peculiar relationship of the parties, facts beyond plaintiff's control and knowledge, she can not recover. In fact, plaintiff, not knowing where her money went, had every right to assume she was an invitee of Mrs. Post. She was positive she was not a social guest.

The restrictive nature of the mutual benefit theory leads the courts to graft exceptions. 'It may be argued that the courts which have adopted the economic benefit test in striving for what seemed to be a desirable result * * * have so attenuated the concept * * * as to leave it little real content. The test must under many circumstances turn upon a determination of the visitor's subjective state of mind.' 95 A.L.R.2d 993, Annotation: Invitee Status--Test.

2. The second test for invitees comes from the 2nd Restatement of Torts, § 332, which states:

'(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 is held open to the public.

'(3) 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.'

Under this theory plaintiff would be an invitee. While she had no business with defendant, she was invited to enter or remain on land as a member of the public for a purpose for which the land was held open to the public.

This test is broader than the mere economic benefit test but does not dispute that, if an economic benefit is present, the person is prima facie an invitee.

Courts are receiving the new test with wide acceptance. Prosser in his Law of Torts 3rd Edition, states that 'the second theory is now accepted by the great majority of the courts; and many visitors from whose presence no shadow of pecuniary benefit is to be found are held to be invitees. Prosser continues that when premises are thrown open to the public assurances of reasonable care are ordinarily given. This test has been called the Invitation test. It can be said to be a setting out in words what many courts have already been doing through a distortion of the economic benefit test.

Numerous jurisdictions have adopted the invitation test, often in combination with the benefit test. See 95 A.L.R.2d Annotation, supra, at p. 1000 and p. 1006. Also see City of Richmond v. Grizzard, 1964, 205 Va. 298, 136 S.E.2d 827; Dowd v. Portsmouth Hospital, 1963, 105 N.H. 53, 193 A.2d 788, and Lemon v. Busey, 1969, 204 Kan. 119, 461 P.2d 145. The Dowd case puts it especially succinctly, saying that the expansion of the invitee status was justified by the principles of reasonableness and justice.

Florida, too, has recognized the value of the invitation test. In Smith v. Montgomery Ward & Co., Fla.App.1970, 232 So.2d 195, this court said,

'Although superficially the more restricted economic benefit test seems plausible and satisfactory, it is ill-founded for several reasons. For one thing, making the purpose of the visit determinative of the plaintiff's status enables him to clothe himself with an invitee's garments merely by proper allegations in his pleadings. * * *

'There are too many instances where the economic benefit theory has been strained to the breaking point. Yet the courts have determined to be invitees a friend or child accompanying a customer into his store, * * * or a person who goes with another to a railroad station to see him off, * * *. Or the person who goes to a bank to change a five-dollar bill. * * * If benefit is conferred upon the occupier by such visits as these, it is certainly on bases more tenuous than those which often may be found in the case of a social guest whose status has always been considered that of a licensee. * * *

'For the obvious reasons alluded to above, we are disposed not to accept the economic benefit theory as the sole test in Florida, since the invitation theory serves well the broad principles of negligence.' (Citations omitted.)

It thus appears a large crack has appeared in the veneer of previous Florida law on invitees. We agree heartily with this new concept.

3. While the trend is toward adoption of the invitation test there is a sub-trend away from all tests. This non-test would substitute for the various technical rules the broad test of reasonable care under the circumstances. The status o the injured person would have some bearing, in the light of the facts giving rise to such status, but it would not be determinative. 33 A.L.R.3d 508, Annotation: Premises Liability, Claimants Status.

The leading case adopting this view is Rowland v. Christian, 1968, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561. The court concluded that the proper test to be applied to the liability of the possessor of land is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others. The court also said that

'A man's life or limb does not become less worthy of protection by the law nor a loss less worthy of compensation under the law because he has come upon the land of another without permission or with permission but without a business purpose. Reasonable people do not ordinarily vary their conduct depending upon such matters, and to focus upon the status of the injured party as a trespasser, licensee, or invitee in order to determine the question whether the landowner has a duty of care, is contrary to our modern social mores and humanitarian values. * * *'

See 32 A.L.R.3d, supra, at p. 523.

While this court finds much merit in such a position, we can foresee difficulties in such a case by case approach. This non-test has been explored mainly to bring to light the liberal atmosphere which is fast covering this whole area of the law.

So what is this court to do? Given the law as it stood in Florida before Smith v. Montgomery Ward & Co., supra, we can, as has been done so many times previously, create a fiction or a distortion within the framework of the...