McManus v. Rogers, Civ. A. No. 1046-58.

• Decision Date: 11 May 1959
• Docket Number: Civ. A. No. 1046-58.
• Citation: 173 F. Supp. 118
• Parties: Frederick J. McMANUS, Jr., a minor, by his father and next friend, Frederick J. McManus, Sr., and Frederick J. McManus, Sr., individually, Plaintiffs, v. Winifred ROGERS, Defendant.
• Court: U.S. District Court — District of Columbia

173 F. Supp. 118

Frederick J. McMANUS, Jr., a minor, by his father and next friend, Frederick J. McManus, Sr., and Frederick J. McManus, Sr., individually, Plaintiffs, v. Winifred ROGERS, Defendant.

Civ. A. No. 1046-58.

United States District Court District of Columbia.

May 11, 1959.

Frank F. Roberson, and John J. Ross, Hogan & Hartson, Washington, D. C., for plaintiffs.

Douglas A. Clark, Washington, D. C., for defendant.

KEECH, District Judge.

This case is before the court on the motion of counsel for plaintiffs for a reconsideration of the court's direction of a verdict for defendant as to both plaintiffs at the close of plaintiffs' case.

The action for personal injuries is brought by Fred J. McManus, Jr., and his father against Mrs. Winifred Rogers as the result of serious injuries sustained by Fred on August 28, 1957, when he fell from the outside rear deck of the defendant's car while it was being operated by defendant's son Tom. Plaintiffs' evidence shows that Fred, with four of his friends, had attended an "open house" of a teen-age church group of which he was not a member. He had not attended any of its functions before and did not know the defendant's son. It was customary with this group for members having cars to furnish the others without cars transportation home. After the party broke up there came a time when defendant's son was the only member left who had a car, and there were too many persons without transportation for his car to accommodate. Tom refused to try to take all of them and made a number get out of the car. Another car came along and took about four. About six remained in the back seat, with three in the front. One of Fred's friends tried to ride on the front fender but was ordered off. Thereafter he got on the rear deck, and at some point the plaintiff Fred also got on the rear deck and rode there. The car started off up Garrison Street toward 39th slowly, because of the load; it made a left and right turn at 39th where there is a jog in Garrison Street, and then started down hill toward Belt Road at an increased speed, never exceeding twenty-five miles an hour. Before reaching the curb line of the intersection Tom started a wide turn into Belt Road, which he did not complete, as he came to a full stop when it became known that someone had fallen from the rear of the car. Thereafter, Fred was found lying unconscious on the pavement somewhere in the intersection. Because of his serious injuries Fred did not regain consciousness for some time, and he now has no recollection of a period beginning some two weeks before the accident until he regained consciousness in the hospital some weeks thereafter, including the time of the accident.

Since we recessed yesterday, I have reconsidered the defendant's motion for a directed verdict in the light of the further argument of counsel for plaintiffs.

This further argument was based on two principal contentions: (1) that at the time of the accident the plaintiff Fred McManus, Jr., occupied the status of a licensee by implied invitation, to whom the defendant's son and agent owed the duty of reasonable care (citing Firfer v. United States, 1953, 93 U.S.App.D.C. 216, 219, 208 F.2d 524, and Gleason v. Academy of the Holy Cross, 1948, 83 U.S. App.D.C. 253, 168 F.2d 561); and (2) that even if McManus, Jr., were only a bare licensee or trespasser, the defendant's son and agent owed him the duty of reasonable care not to injure him through active negligence (citing Radio Cab, Inc. v. Houser, 1942, 76 U.S.App. D.C. 35, 128 F.2d 604, and Prosser Law of Torts (1955 ed.) § 76, p. 432), the intentional, willful, or wanton limitation on one's duty to a trespasser or bare licensee, stated in the Firfer opinion, being applicable only in the case of passive negligence.

Again, I repeat, in passing upon this motion the evidence must be viewed in the light most favorable to the plaintiffs and every favorable inference indulged in the plaintiffs' behalf.

My further review of the evidence and consideration of the additional authority supplied by counsel for plaintiffs, as well as such independent research as I have been able to accomplish, has brought me to the following conclusions:

First, the driver of a car has the duty to any trespasser whose presence is not known to him to refrain from intentional, willful, or wanton negligence. If the presence of the trespasser becomes known to the driver and he tolerates or acquiesces in continuance of the trespass, the trespasser becomes a licensee by acquiescence or, as it is sometimes called, a bare licensee. To either a trespasser whose presence is known or may reasonably be known or a bare licensee, the driver owes a duty to use reasonable care not to commit any negligent act which will create a danger to the trespasser or bare licensee.

I find no case in the District of Columbia directly in point, but this view would be in line with the rationale of the Radio Cab and Firfer cases as I interpret them together, as well as cases from other jurisdictions and treatises of various text writers concerning the changing law as to the duty owed a bare licensee or trespasser whose presence is known or reasonably should be known. Further, it is in accord with the modern concept of social responsibility to approve a duty on all persons to exercise reasonable care not to endanger by any affirmative act other persons who are known or reasonably should be known to be within the foreseeable risk.

The Radio Cab decision is not clearly dispositive of the rule applicable to this case, although it dealt with the distinction between active and passive negligence. While the opinion terms the plaintiff in that case a "licensee", without any descriptive qualification, it is clear from the facts recited that he was a licensee by invitation, having entered the premises for his own purpose after express permission by the owner's agent, and the permissive nature of his entry was accented in the court's opinion.

The basis of the court's ruling in the Radio Cab case is summarized in its quotations from other cases (at page 37 of 76 U.S.App.D.C., at page 605 of 128 F.2d):

"* * * a person who merely gives permission to pass and repass along his close is not bound to do more than allow the enjoyment of such permissive right under the circumstances in which the way exists; * * * The grantee must use the permission as the thing exists. It is a different question, however, where negligence on the part of the person granting the permission is superadded. It cannot be that, having granted permission to use the way subject to existing dangers, he is to be allowed to do any further act to endanger the safety of the person using the way. The plaintiff took the permission to use the way subject to a certain amount of risk and danger, but the case assumes a different aspect when the negligence of the defendant * * * is added to that risk and danger." (Gallagher v. Humphrey (1862), 6 L.T. N.S. 684, cited in Sec. 95 of Harper on Torts.) Emphasis supplied.

And again:

"* * * the licensor has, however, no right to create a new danger while the license continues." Stevens v. Nichols, 155 Mass. 472, 29 N.E. 1150, 1151, 15 L.R.A. 459. Emphasis supplied.

The Firfer decision, later in time, clearly defines "licensees by invitation", "bare licensees" and "trespassers", and distinguishes between the degrees of care owed the various classes, holding that a bare licensee or trespasser may recover only for intentional, willful, or wanton negligence. Firfer, however, dealt only with passive negligence.

In line with modern developments in the law, it is the view of this court that on an appropriate fact situation one might anticipate that the ruling in the Radio Cab case would be extended from the permissive status there dealt with to a holding that one who has notice of, or reasonably should foresee, the presence on his property of bare licensees or trespassers should exercise reasonable care not to endanger them by any affirmative act of negligence on his part which would create a new danger over and above hazards already existing on his property.

Second, bearing these principles in mind, I find the evidence shows, as a matter of law, that at the time he got on the car the plaintiff Fred McManus, Jr., occupied the status of a trespasser on the automobile, his precarious position having been selected by himself without permission, express or implied, which might have raised him to the status of a licensee by invitation. Even assuming an invitation to ride inside the defendant's automobile might be implied from the circumstances surrounding the preceding party, the positive testimony of eyewitnesses, as well as the presumption of due care on the part of defendant's agent, negate any express or implied invitation to ride on the outside rear deck of the car. There is no evidence in the case upon which a contrary finding could reasonably be based.

Third, I find, as a matter of law, that there is insufficient evidence of record upon which the jury could base a finding that Tom, the defendant's agent, became aware of Fred's trespassing presence on the outside of the car in time for him either to object thereto or to acquiesce therein before Fred fell from the vehicle. Hence, there is no evidence upon which to predicate a finding that Fred acquired the status of a licensee by acquiescence, or bare licensee, in the course of his ride on the outside of the car.

Fourth, I find as a matter of law that there is insufficient evidence in this record for any reasonable man to base a finding thereon that Tom had any actual knowledge of Fred's presence on the outside of the car, or reasonably should have known of his presence under the physical facts and circumstances then existing, in time to have taken any precautions for his safety other than what Tom did.

According to the testimony of plaintiffs' witnesses, when the car left its parking place there were three...