McKinnon v. Washington Federal Sav. & Loan Ass'n

• Decision Date: 26 May 1966
• Docket Number: No. 38301,38301
• Court: Washington Supreme Court
• Parties: J. A. McKINNON and Muriel McKinnon, his wife, Appellants, v. WASHINGTON FEDERAL SAVINGS AND LOAN ASSOCIATION, a corporation, and A. B. Stallings, Respondents.

Page 644

68 Wn.2d 644

414 P.2d 773

J. A. McKINNON and Muriel McKinnon, his wife, Appellants, v. WASHINGTON FEDERAL SAVINGS AND LOAN ASSOCIATION, a

corporation, and A. B. Stallings, Respondents.

No. 38301.

Supreme Court of Washington, Department 1.

May 26, 1966.

Rehearing Denied Sept. 7, 1966.

Frederick Paul, Seattle, for appellants.

Williams, Lanza, Kastner & Gibbs, William D. Cameron, Seattle, for respondents.

BARNETT, Judge. ^*

This appeal is taken from an order of dismissal against plaintiffs in their action to recover damages for personal injuries suffered by Mrs. McKinnon as the result of a fall sustained on the property of defendant Washington Federal Savings and Loan Association. In the complaint, plaintiffs alleged that defendants had breached the duty of care owed Mrs. McKinnon, an invitee. Pretrial depositions and written interrogatories were taken. At the commencement of the trial, defendants moved to dismiss. Argument was heard and the motion was granted upon agreed facts, I.e., those most favorable to plaintiffs, as evidenced by the depositions, offers of proof, certain exhibits, and the colloquy of counsel before the court. These undisputed facts follow.

On March 5, 1962, defendant Washington Federal Savings and Loan Association opened its doors for business in the Snohomish County community of Lynnwood. To mark this occasion, the association conducted an 'open house' for a period of 3 days. During this time, a 4 by 8 foot sign was displayed within the premises, which bore the following:

This room and adjoining kitchen facilities are available for the free use of local clubs and organized groups for meetings and conferences, either during regular office hours or in the evenings. Arrangements can be made in advance by contacting any one of the staff members. Courtesy of Washington Federal Savings.

Several organizations did, in fact, make use of the association's facilities for regular meetings, ¹ one of which was Girl Scout Group 1147, which met there three times a month, and had done so from the time the premises became available.

The rooms utilized by the various groups consisted of a kitchen and a conference room located at the rear of the business premises. It was the practice of the Girl Scout group to enter the meeting room through the back door of the building, the key to which was usually obtained by one of the adult leaders from an employee of defendant association. A cement sidewalk, some 4 feet in width, approached the building at an oblique angle, then jutted to the left so as to meet the rear wall--and back door--of the building at a right angle. Near the inside apex of the angle formed by the sidewalk, some 3 inches from its edge, was a sprinkler nozzle. This device, part of an underground sprinkler system owned by the association, projected upward to a point somewhat above the level of the adjacent sidewalk. A view of the sidewalk, the sprinkler nozzle, and the rear of the building is show by the photograph below, an exhibit in the case.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In the evening of March 19, 1964, plaintiff Muriel McKinnon, adult leader of the Girl Scout group, approached the back door of the association's premises, where a meeting was then scheduled. As she walked along, Mrs. McKinnon swung her left foot over the edge of the sidewalk, caught the sprinkler head, and went sprawling, sustaining the injuries for which she now seeks redress.

In granting defendants' motion to dismiss, the court entered the following order:

The above-entitled action came on regularly for trial on October 21, 1964, and at the beginning thereof Washington Federal Savings and Loan Association moved for an order of dismissal in the nature of summary judgment based upon the depositions of Muriel McKinnon and James H. D. Young heretofore filed and published herein, and upon defendants' Exhibit 1, being a photograph, and upon plaintiffs' Exhibit 2, being a large cardboard sign, and upon the offer of proof by the above-named plaintiffs, and upon the agreed facts as contained in the colloquy between counsel and the court, all of which are a part of the record herein; now, therefore, the court hereby

FINDS that the occasion of Mrs. McKinnon's visit to defendant Association's premises was not commercial or contractual in nature nor was it of any material or pecuniary benefit, actual or potential to the defendant Association.

Therefore, the court further finds as a matter of law that plaintiff wife was a licensee to whom the defendant Association owed only the duty of not wilfully or wantonly injuring. As a further matter of law, there was no breach of that duty. Now, therefore, it is hereby

ORDERED, ADJUDGED AND DECREED that the above-entitled action shall be and the same is hereby dismissed as against defendant Washington Federal Savings and Loan Association, with prejudice and with costs taxed in said defendant's favor.

We must decide whether the trial court committed error in concluding, from the agreed facts, that Mrs. McKinnon was a mere licensee upon the association's premises on the occasion of her fall.

To a licensee, as to a trespasser, an occupier of land owes no duty except, generally, to refrain from wilfully or wantonly injuring him. Dotson v. Haddock, 46 Wash.2d 52, 278 P.2d 338 (1955). The law exacts of the owner or occupier a greater duty of using ordinary care to keep the premises in a reasonably safe condition when a visitor, who has attained the status of an 'invitee,' comes upon his premises. Ward v. Thompson, 57 Wash.2d 655, 359 P.2d 143 (1961); Enersen v. Anderson, 55 Wash.2d 486, 348 P.2d 401 (1960). The suitor's status, then, is often a determinative factor in his quest for compensation for injuries suffered while on the land of another. Unless he can establish himself as an invitee, he must shoulder the formidable burden of proving defendant's wilful or wanton misconduct.

From as early as Gasch v. Rounds, 93 Wash. 317, 160 P. 962 (1916), this court has applied the so-called 'economic benefit' test in determining whether an entrant to one's land is an invitee. Under this test, an invitee is one who is either expressly or impliedly invited onto the premises of another for some purpose connected with the business in which the owner or occupant is then engaged. To qualify as an invitee or business visitor under this definition, it must be shown that the business or purpose for which the visitor comes upon the premises is of actual or potential benefit to the owner or occupier thereof. Dotson v. Haddock, supra. It is reasoned that an owner or occupier is under no affirmative duty to make the premises safe for visitors unless he expects to derive some measure of economic benefit from their presence. That is, the affirmative duty of reasonable care is said to be thrust upon the owner as the Quid pro quo for the expected benefit. 2 Harper and James, Torts § 27.12 at 1478 (1956); Prosser, Torts § 61 at 396 (3d ed. 1964).

Prosser, supra, states at 399 that courts in other...