McNulty v. Hurley

Decision Date18 September 1957
Citation97 So.2d 185
PartiesMae McNULTY and John J. McNulty, Appellants, v. Most Reverend Bishop Patrick HURLEY of the Diocese of St. Augustine, Florida, a Religious corporation, Appellee.
CourtFlorida Supreme Court

Gerald S. Berkell, Miami Beach, for appellants.

Blackwell, Walker & Gray and Walton, Lantaff, Schroeder, Atkins, Carson & Wahl, Miami, for appellee.

O'CONNELL, Justice.

Mae McNulty and John J. McNulty, plaintiffs below, appeal the dismissal of their complaint against the defendant-appellee, the Most Rev. Bishop Patrick Hurley of the Diocese of St. Augustine, Florida, a corporation sole.

Mae McNulty, hereafter referred to as the plaintiff, attended mass on March 27, 1955 in Gesu Church, a Roman Catholic Church in the City of Miami. This church is owned and possessed by the defendant, in his capacity as a corporation sole. When the mass was concluded, plaintiff and other worshippers made their way to the exit.

Plaintiff's complaint alleged that while descending the steps of the church she fell because she was 'pushed from behind and violently thrown to the ground by person or persons unknown to the plaintiff who were in a surging crowed, which was also leaving the church at the said time and place.' She alleged that it was common practice for parishioners of the church 'to run, push and surge down the crowded steps of the church', which fact the defendant knew or should have known and therefore should have foreseen that a person properly descending the steps of the church might suffer injuries thereby. Plaintiff contended defendant was careless and negligent in failing to operate the church and its appurtenances in a reasonably safe condition; in failing to take precaution to prevent pushing and surging of the crowd by not providing a sufficient number of attendants; in failing to warn parishioners of the dangerous condition of a pushing and surging crowd; in failing to provide a proper and safe exit and in failing to conduct the exit of the parishioners in a proper and lawful manner.

The lower court granted defendant's motion to dismiss, stating:

'* * * the Court being of the opinion that the plaintiffs have failed to state a cause of action, the dismissal * * * is with prejudice and at the cost of the plaintiffs.'

The court then entered judgment in favor of the defendant, reciting therein that the plaintiff had declined to plead further.

In her appeal plaintiff, of course, argues that her complaint did state a cause of action. She contends that the doctrine of foreseeability applies against the defendant, in that the defendant was aware that the crowding, pushing and surging took place and would likely result in injury to someone, yet did nothing to safeguard her from such danger.

Defendant's defense is primarily that one entering the premises of a church for the purpose of attending religious services is a mere licensee to whom the church owes only a duty to refrain from wanton negligence or wilful misconduct which would injure her and to refrain from intentionally exposing her to danger, and that the complaint was fatally defective in that there were no allegations of negligence of the kind and degree which would constitute a violation of the duty owed a licensee.

In addition defendant contends that it is a general rule of law that one cannot recover from a charitable trust unless there has been negligence in the selection of employees causing an injury to the claimant.

This cause sounds in tort. In such an action it is essential that the complaint allege facts either showing a duty owed to the plaintiff by defendant and a breach thereof by the defendant, or that plaintiff has a legal right which right has been invaded by the defendant, and further that the plaintiff has been damaged thereby.

As between an owner or occupant of premises and persons who come thereon the law recognizes, in general, three distinct and separate relationships. Persons occupying such relationships are classified as either invitees, licensees, or as trespassers.

The duty owed by the owner or occupant of premises to each class of persons is also distinct. The duty owed by the owner or occupant to the trespasser is to refrain from committing a wilful or wanton injury against him with the rule being softened after discovery by the landowner of peril to the trespasser. Byers v. Gunn, Fla.1955, 81 So.2d 723.

The duty owed a licensee is to refrain from wanton negligence or wilful misconduct which would injure him, or to refrain from intentionally exposing him to danger. City of Boca Raton v. Mattef, Fla.1956, 91 So.2d 644. There may be a further duty to the licensee to warn him of a defect or condition known to the owner or occupant to be dangerous when such danger is not open to ordinary observation by the licensee. Goldberg v. Straus, Fla.1950, 45 So.2d 883; 65 C.J.S. Negligence § 35 g; Prosser, Torts, Sec. 77, p. 450; Restatement, Torts, Sec. 342, Comment d.

A greater duty is owed to an invitee than to either of the other class of persons above mentioned. The owner or occupant owes an invitee the duty of keeping the premises in a reasonably safe condition, and, as plaintiff contends, also to guard against subjecting such person to dangers of which the owner or occupant is cognizant or might reasonably have foreseen. First Federal Sav. & Loan Ass'n v. Wylie, Fla.1950, 46 So.2d 396 and Messner v. Webb's City, Inc., Fla.1952, 62 So.2d 66.

In order to determine the duty which the defendant in this case owed to the plaintiff we must decide whether the plaintiff was an invitee or licensee, it being clear from the pleadings that she was not a trespasser.

"A licensee is broadly defined as a person who enters upon the property of another for his own convenience, pleasure, or benefit." Stewart v. Texas Co., Fla.1953, 67 So.2d 653, 654, quoting Am.Jur., Negligence, Sections 104 and 105.

In City of Boca Raton v. Mattef, supra, 91 So.2d at page 647, we defined an invitee as follows:

'An invitee is normally considered to be one who enters upon the premises of another for purposes connected with the business of the owner or occupant of the premises.'

The Texas court, in Cowart v. Meeks, 1938, 131 Tex. 36, 111 S.W.2d 1105, 1107 sets forth a reasonable practical test to determine whether a person is an invitee or...

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  • Marks v. Delcastillo
    • United States
    • Court of Appeal of Florida (US)
    • August 5, 1980 dangerous when such danger is not open to ordinary observation by the licensee. Post v. Lunney, Fla.1972, 261 So.2d 146; McNulty v. Hurley, Fla.1957, 97 So.2d 185. Our holding is consistent with § 342 of the Restatement of Torts 2d, which § 342. Dangerous Conditions Known to Possessor A ......
  • Stitt v. Holland Abundant Life Fellowship
    • United States
    • Supreme Court of Michigan
    • July 18, 2000 that the premises were held open for a commercial purpose. With regard to church visitors, we agree with the court in McNulty v. Hurley, 97 So.2d 185 (Fla., 1957), that such persons are licensees.10 In McNulty, a churchgoer was injured when, as she was leaving the church, she was pushe......
  • Emerson v. Holloway Concrete Products Company, 17839.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 29, 1960
    ...each of these classes are set forth in the court's opinion in Cochran v. Abercrombie, supra, by the following quotation from McNulty v. Hurley, Fla., 97 So.2d 185: "`The duty owed by the owner or occupant of premises to each class of persons is also distinct. The duty owed by the owner or o......
  • Finch v. City of Vernon
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • July 21, 1989
    ...invitees from reasonably foreseeable risks of harm. This includes a duty to warn invitees of latent or concealed dangers. McNulty v. Hurley, 97 So.2d 185 (Fla.1957); see also Heath v. First Baptist Church, 341 So.2d 265 (Fla.Dist.Ct.App.), cert. denied, 348 So.2d (Fla.1977). The jury awarde......
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