Morgan v. Perlowski

• Decision Date: 24 November 1993
• Docket Number: No. 92-1420,92-1420
• Citation: 508 N.W.2d 724
• Parties: Mathew MORGAN, Appellee, v. Steven James PERLOWSKI, Appellant.
• Court: Iowa Supreme Court

Page 724

508 N.W.2d 724

Mathew MORGAN, Appellee, v. Steven James PERLOWSKI, Appellant.

No. 92-1420.

Supreme Court of Iowa.

Nov. 24, 1993.

John Werner and Stephanie L. Glenn of Grefe & Sydney, Des Moines, for appellant.

David S. Wiggins of Wiggins & Anderson, P.C., West Des Moines, for appellee.

Considered by McGIVERIN, C.J., and LARSON, NEUMAN, ANDREASEN, and TERNUS, JJ.

ANDREASEN, Justice.

This case involves a claim by a social guest against a host for injuries received when the guest was assaulted by a third person while attending a party at the host's residence. The district court recognized that a host may have a duty to control the conduct of third parties and the court instructed the jury based on the principles of section 318 of the Restatement (Second) of Torts (1965). The jury returned a verdict finding the guest had been injured as a result of the host's negligence. Following entry of a judgment on the verdict, the host filed a motion for judgment notwithstanding the verdict and a new trial. The court denied the motion. We affirm the ruling and judgment entered on the jury verdict.

I. Background.

Mathew Morgan was invited to a party at Steven Perlowski's home on December 25, 1988. Without his mother's knowledge or presence, Perlowski had arranged to host an "open" beer party at his mother's home. During his mother's absence Perlowski was in control of the house. He had invited a number of people who in turn invited others to the party. Between 50 and 100 people, including Morgan, attended the party throughout the evening. Perlowski was a nineteen-year-old high school graduate at the time of the party; Morgan was twenty-one years old.

Approximately two hours after the party began a group of six uninvited males arrived and were admitted to the house. Morgan, Perlowski and John Woodward, a friend of Perlowski's, noticed that the group of men had an "intimidating look" about them. Shortly after this group arrived, Morgan approached Perlowski and inquired as to whether they should ask the uninvited men to leave the party. At that point Perlowski decided to do nothing.

Morgan also contends that he and Woodward advised Perlowski on two later occasions that something should be done about the group. They suggested the uninvited guests should be asked to leave or the party should be called off. Woodward testified that the uninvited men were overtly hostile and were disrupting the party by bumping into other guests and blocking doorways. There is conflicting evidence as to whether both Morgan and Perlowski were actually aware of the group's activities in the home.

Less than an hour after the six men arrived a fight involving the uninvited guests and other guests erupted in the basement. Perlowski was present but he took no action to remove or control the guests. A short time later, Morgan heard a commotion and went downstairs where he saw another guest being punched by members of the troublesome group. Morgan attempted to intervene to stop the fight and was punched and struck in the head with a pool cue by one of the uninvited guests. The blow resulted in permanent impairment of Morgan's left eye.

Subsequently, Morgan brought a negligence suit against Perlowski seeking damages for his injuries. The case proceeded to trial. At trial, the parties disagreed on the proper theory of negligence and the appropriate jury instructions. Perlowski argued that, as a matter of law, he owed no duty of care to Morgan and was entitled to a directed verdict. Morgan, on the other hand, claimed that Perlowski owed him a duty to exercise reasonable care to control the conduct of third persons as recognized in section 318 of the Restatement (Second) of Torts. Perlowski further argued that even if he owed a duty of reasonable care to protect a social guest from intentional harm by a third party, the duty arose out of the possession of land. Therefore, the jury should be instructed on limitations of a possessor's liability under premises liability principles. See Restatement (Second) of Torts §§ 342, 343, 343A.

The district court overruled Perlowski's motion for a directed verdict and the objections to the jury instructions. The jury found Perlowski sixty percent at fault and Morgan forty percent at fault. The jury also found Morgan sustained damages of $125,278.45. The court entered judgment on the verdict for $75,167.07 plus interest and costs.

Perlowski moved for a judgment notwithstanding the verdict and for a new trial. Iowa R.Civ.P. 243, 244. The district court denied his motion, ruling there was sufficient evidence to submit Morgan's claim to the jury and the jury was properly instructed on the applicable law of the case. Perlowski appealed.

Perlowski raises two issues on appeal. First, he urges he had no duty to protect Morgan from the acts of third parties. Second, he urges the trial court failed to properly instruct the jury on premises liability principles.

II. Duty to Control Conduct of a Third Person.

In our review of the district court's ruling on a motion for a judgment n.o.v., we are limited to the grounds urged in the motion for a directed verdict. Federal Land Bank of Omaha v. Woods, 480 N.W.2d 61, 65 (Iowa 1992). We consider the evidence in a light most favorable to the nonmoving party. Id.; Iowa R.App.P. 14(f)(2). "Simply put, we ask, was there sufficient evidence to generate a jury question?" Konicek v. Loomis Bros., Inc., 457 N.W.2d 614, 617 (Iowa 1990).

Generally, a person does not have a duty to aid or protect another. Husker News Co. v. South Ottumwa Sav. Bank, 482 N.W.2d 404, 407-08 (Iowa 1992); Restatement (Second) of Torts § 314. Nor does a person have a duty to control the conduct of a third person to prevent that person from causing physical harm to another. Leonard v. State, 491 N.W.2d 508, 509-10 (Iowa 1992); Restatement (Second) of Torts § 315.

However, exceptions to the general rules arise when a special relationship exists between the persons involved. Kelly v. Sinclair Oil Corp., 476 N.W.2d 341, 354 (Iowa 1991); Restatement (Second) of Torts § 315 & cmt c. We view "the duties described in Restatement sections 315 to 319 quite narrowly, guided by the principle that the scope of the duty turns on the foreseeability of harm to the injured person." Leonard, 491 N.W.2d at 511.

A. Pleadings.

Here Morgan's initial petition was framed upon the principles of section 342 of the Restatement (Second) of Torts. He alleged six unknown guests constituted a dangerous condition known to the defendant but hidden from him. Before resting his case, Morgan amended his petition to include the elements of a claim under section 318 of the Restatement (Second) of Torts. Section 318 provides:

§ 318. Duty of Possessor of Land or Chattels to Control Conduct of Licensee

If the actor permits a third person to use land or chattels in his possession otherwise than as a servant, he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if the actor

(a) knows or has reason to know that he has the ability to control the third person, and

(b) knows or should know of the necessity and opportunity for exercising such control.

The court submitted the case to the jury based upon the amended petition.

In his motion for a directed verdict, Perlowski urged that (1) he had no duty to protect Morgan, (2) that Morgan assumed the risk of his own injury, and (3) the evidence at trial failed to establish any of the elements requisite to a finding of liability. He argued that the general principles of premises liability should be applied. Under these principles when the dangerous condition and risk is obvious to an invitee or licensee, the possessor of the land has no duty to warn or protect them from injury. See Schnoor v. Deitchler, 482 N.W.2d 913, 917-18 (Iowa 1992).

B. Scope of Duty.

Under Iowa law the scope of the duty of care which a possessor of land owes to an entrant is based upon the entrant's status as either a trespasser, licensee, or invitee. Id. An invitee is a person who enters or remains on land open to the public by invitation or permission and is owed the highest standard of care. Restatement (Second) of Torts § 332 & cmt. a. A licensee is one who may enter or remain on land only with the possessor's consent. Reasoner v. Chicago, Rock Island & Pac. R.R. Co., 251 Iowa 506, 511, 101 N.W.2d 739, 742 (1960); Restatement (Second) of Torts § 330. As social guests, Morgan and the uninvited men were licensees in Perlowski's home. See Restatement (Second) of Torts § 330 cmt. h.

Perlowski urged the trial court's fundamental error was characterizing the case as something other than a premises liability case. The trial court determined that the duty under section 318 of a possessor of land to control the conduct of a licensee applies to harm from persons on the land, not from the physical condition of the land or the activities of the possessor. The duty to control the conduct of licensees arises from the existence of a special relationship between a possessor of land and a licensee on the property. See Davis v. Kwik-Shop, 504 N.W.2d 877, 879 (Iowa 1993).

We agree with the trial court that this is something other than a premises liability case. Section 318 of the Restatement (Second) of Torts is found in chapter 12 dealing with general principles of negligence. Under the topic of "duties of affirmative action," section 318 is under the title dealing with duty to control conduct of third persons.

Section 342, by contrast, is found in chapter 13 dealing with liability for condition and use of land. Under the topic of "liability of possessors of land to persons on the land," section 342 is under the title dealing with special liability of possessors of land to licensees.

Section 318 relates to the duty of a possessor of...