Miniken v. Carr

• Decision Date: 01 June 1967
• Docket Number: No. 38519,38519
• Citation: 428 P.2d 716,71 Wn.2d 325
• Parties: Percy MINIKEN and Dorothea Miniken, his wife, Respondents, v. Frank B. CARR and Jane Doe Carr, his wife, Appellants.
• Court: Washington Supreme Court

Page 325

71 Wn.2d 325

428 P.2d 716

Percy MINIKEN and Dorothea Miniken, his wife, Respondents, v. Frank B. CARR and Jane Doe Carr, his wife, Appellants.

No. 38519.

Supreme Court of Washington, Department 2.

June 1, 1967.

Anderson & Hunter, Paul D. Hansen, Everett, for appellants.

Monheimer, Schermer, Van Fredenberg & Smith, D. Van Fredenberg, Seattle, for respondents.

LANGSDORF, Judge. ^*

This is an appeal from a jury verdict favoring plaintiffs Miniken in their action for damages arising from the negligence of defendants Carr. For the sake of convenience, Mrs. Miniken will be considered the sole respondent and Mr. Carr the sole appellant.

Mrs. Miniken, a 57-year-old woman, was seriously injured when she fell down the basement stairs in Mr. Carr's law office in Snohomish, Washington. The accident came about in the following manner.

Mr. and Mrs. Miniken were in the process of buying property from clients of Mr. Carr. They were required to sign some closing papers, and for the convenience of all parties it was arranged that they would gather in Mr. Carr's office the morning of Saturday, September 14, 1963. The Minikens arrived at the office about noon and entered the reception room. Mr. Carr, who was busy in his office with two other gentlemen, came out to greet the Minikens and told them the vendors had not yet arrived. No other employees were present.

Some time later, Mr. Miniken stepped into the hall leading off the reception room, knocked on Mr. Carr's office door and asked if he might use the restroom. Carr assented, leading him down the hallway and then to the left, into a shorter hall or alcove. He reached in front of Mr. Miniken to turn on the restroom light switch and opened the restroom door, also in the left wall of the alcove. Mr. Carr then returned to his office.

Upon Mr. Miniken's return to the reception room, his wife asked the location of the restroom. He is variously reported to have said, 'Down the hall and to your left,' or 'the first door on your left.' In any event, Mrs. Miniken went down the hall, turned left and opened the door in the end of the alcove rather than the one immediately adjacent, in the left wall. The door she opened led to the basement, and she was immediately catapulted down the stairs.

Testimony and pictures admitted at trial show the two doors are at right angles to each other and immediately adjacent, the frames of each butted together in the corner of the alcove. Both doors are alike; neither is marked or labeled. The restroom door opens outward from the left, the basement door inward from the right. There was no sill or lip inside the basement door and the stairs dropped off steeply and turned to the right. The basement light switch was inside the descending stairwell.

Mr. Carr heard the commotion caused by the fall, came out of his office and discovered Mrs. Miniken at the bottom of the stairs. He summoned her husband. During this time he was reported to have said he was afraid something of this nature would occur and that was why he escorted people to the restroom.

Appellant operated a two-man law firm. The building was one story, of concrete construction. It had previously been a telephone office. Besides the reception room and Mr. Carr's office, it consisted of a second office and a library, both opening off the main hall. At trial appellant stated that the restroom was considered private and that he expected people to ask to use it. He also stated no one had ever been refused its use.

Appellant's primary contention is that respondent was no more than a licensee at the time she was injured, so that he owed her only the duty not to wantonly or willfully injure her. He contends he did not owe her reasonable care for her safety--the duty owed a business invitee. Respondent, on the other hand, urges that all distinctions between invitees and licensees be abandoned, making reasonable care due each in all circumstances.

It is true that it is not always helpful to determine duty owed entrants on land by traditional restrictive legal application of these 'ancient categories.' Mills v. Orcas Power & Light Co., 56 Wash.2d 807, 821, 355 P.2d 781 (1960), but we have not, as respondent urges, abandoned them. In the recent case of McKinnon v. Washington Fed. Savings and Loan, 68 Wash.Dec.2d 640, 414 P.2d 773 (1966), we adopted a more flexible test for determining whether entrants on land were business invitees. Implicit in that decision was a determination that the distinctions maintain their vitality.

Considering the facts of this case, we think a jury could find that Mrs. Miniken was an invitee at the time she was injured and was thus owed a duty of reasonable care for her safety. Appellant does not contest her status as such when she entered the building or for the purpose of transacting the business for which she and her husband had come. It might well be determined that she remained an invitee during her trip to the restroom.

The precise scope of a business invitation is always a difficult one. Essentially it depends upon what the invitee is to do upon the premises, as well as what the occupier 'encourages' the visitor to do. Prosser, Torts, § 61 (3d. ed.) at 394. But it also depends on where the invitee may be reasonably foreseen to go, and where the occupier Expects him to go. It may be that the express permission given Mr. Miniken constituted active 'encouragement' to his wife. Moreover, the fact that use of the restroom had never been refused can be taken to show appellant Expected visitors to use it. It may even be that operation of a detached business building requires some provision of lavatory facilities be made for business visitors.

But it is not necessary to rest our determination on the invitee-licensee distinction alone. Even a licensee may be owed a duty by an occupier to warn him of concealed, dangerous conditions of which the occupier has knowledge, and of which the licensee does not know. That such a duty might exist was recognized as early as in Christensen v. Weyerhaeuser Timber Co., 16 Wash.2d 424, 432, 133 P.2d 797, 800 (1943), where, after stating the general rule of wanton or willful conduct as to licensees, we said 'The rule as thus expressed does not exclude liability on the part of the owner or proprietor for extraordinary concealed perils against which the licensee cannot protect himself, or for unreasonable risks incident to the possessor's activites.' In McNamara v. Hall, 38 Wash.2d 864, 233 P.2d 852 (1951), this rule concerning dangerous conditions on the premises was recognized, but it was there determined the occupier himself had no knowledge of the danger involved.

In the more recent case of Potts v. Amis, 62 Wash.2d 777, 384 P.2d 825 (1963), we quoted favorably from Christensen v....