Ortner v. Linch, 60-23

• Citation: 128 So.2d 152
• Decision Date: 22 December 1960
• Docket Number: No. 60-23,60-23
• Parties: Romaine ORTNER, Appellant, v. Abraham LINCH, d/b/a Angler's Hotel, Appellee.
• Court: Florida District Court of Appeals

Page 152

128 So.2d 152

Romaine ORTNER, Appellant, v. Abraham LINCH, d/b/a Angler's Hotel, Appellee.

No. 60-23.

District Court of Appeal of Florida, Third District.

Dec. 22, 1960.

Rehearing Denied Jan. 16, 1961.

Gershon S. Miller, Miami Beach, for appellant.

Tobin, Rubin & Salmon, Miami, for appellee.

CARROLL, CHAS., Judge.

The appellant, who was the plaintiff below, sued Abraham Linch, doing business as Angler's Hotel, for injuries she received when she fell to the ground upon leaving the hotel by a rear entrance. Her amended complaint contained the following allegations:

'That heretofore, to-wit: on or about the 3rd day of November, 1958, the plaintiff was a guest of a tenant residing at the Angler's Hotel, located at 634 Washington Avenue, Miami Beach, Dade County, Florida, owned and operated by Abraham Linch, defendant herein. That plaintiff was exiting from the rear door of said hotel on said date, and fell due to a dangerous and hazardous condition existing in that there was no step between the hotel premises and the ground level which defendant well knew existed.'

Plaintiff then alleged she was injured as a proximate result 'of the aforesaid dangerous and hazardous condition, due to the negligence and carelessness of the defendant.'

Defendant answered denying negligence and pleading contributory negligence. Thereafter, defendant moved for summary judgment. On the hearing on the motion there were before the court a discovery deposition of the plaintiff, and an affidavit, in opposition to the motion, made by Anna Hansen, the hotel guest at whose instance the plaintiff was in the hotel. Also, there were presented before that court, though not filed in evidence, photographs of the rear entrance showing the door sill to be approximately 15 inches from the ground.

The facts were few, and without material dispute, Mrs. Hansen had rented a room in the hotel on some basis which was not shown. She was in the process of moving in, and the plaintiff was assisting her. They had brought some of Mrs. Hansen's things into the hotel, entering by the front door, and had left them in her room. Both ladies then proceeded to leave the hotel by a rear door, with the plaintiff walking ahead of Mrs. Hansen. Plaintiff explained that they left by the rear door because Mrs. Hansen's room was located near it, and because they were not well dressed. She said they descended several steps to reach the door level on the inside, and that she fell when she stepped out of the rear door, expecting a step where there was none, between the door sill and the ground. It appeared that the sill of the rear door was high enough from the ground level to have required a step, but that there was no intervening step or platform step. It was 8 o'clock at night, and the substance of plaintiff's statements in her deposition, concerning the lighting, was that there was a dim light at the rear door; that she was able to see where she was going, and that she was looking, but expected a step and none was there. Mrs. Hansen, in her affidavit, said they had no reason to anticipate that a step would be missing. There was no showing of any direction against use of the rear door of the hotel, or of any warning respecting the condition of that exit.

The trial court granted the defendant's motion and entered a summary judgment, holding that the plaintiff was a licensee rather than an invitee. In so holding the learned trial judge was in error, because as a guest of a guest in the hotel the status of the plaintiff was that of an invitee, as recognized and held by the Supreme Court in Steinberg v. Irwin Operating Co., Fla.1956, 90 So.2d 460, 58 A.L.R.2d 1198, and when the facts and evidence, which were before the trial court on the motion for summary judgment, are considered in the light of the duty owed by the defendant hotel operator to an invitee, ¹ it seems clear that the question of negligence, as to whether the condition of the rear exit was unsafe or required a warning, and the question of whether the plaintiff was guilty of contributory negligence, were questions for jury trial.

In holding that the plaintiff was a licensee and not an invitee, the trial court cited and relied on Stewart v. Texas Co., Fla.1953, 67 So.2d 653; McNulty v. Hurley, Fla.1957, 97 So.2d 185 and Roth v. Flom, Fla.App.1958, 105 So.2d 179. In those cases plaintiffs were held to be licensees under other circumstances, and on premises other than a hotel. The McNulty case involved a person attending service at church. The Stewart case concerned a person going into a service station to obtain change for a ten dollar bill, and the Roth case was one in which this court held that a person visiting a tenant in an apartment house, who was injured when she fell on a sidewalk on the premises, was a licensee of the apartment house operator. Given its full effect, Roth v. Flom, supra, would appear to justify the reliance which the able trial judge placed upon it, but the Roth case is not controlling on the question of the plaintiff's status in the defendant's hotel for two reasons. First, because the Supreme Court has held that a guest of a guest in a hotel is an invitee. See Steinberg v. Irwin Operating Co., supra, Fla.,1956, 90 So.2d 460. Second, Roth v. Flom, supra, ² states a minority view, ³ and should be limited to its own facts which include that it dealt with an apartment house and not a hotel. ⁴

In Steinberg v. Irwin Operating Co., supra , the plaintiff went into a hotel in the company of two friends, one of whom desired to deliver a message to a registered guest of the hotel. Inquiry at the hotel desk revealed that the guest was not in. It was the holding of the Supreme Court in that case that when the plaintiff entered the hotel for such purpose her status was that of an invitee. It follows that if she had then proceeded to leave the hotel she would have remained an invitee while departing. Instead, she and the other two women wandered off to explore various lounges and other rooms adjacent to the lobby for their own diversion. The plaintiff then fell, in going from the TV room at one level into the darker Movie room which was at a different level. The Supreme Court held that the plaintiff in that case had crossed the boundaries of the implied invitation, and that upon doing so she lost her status of invitee and became a licensee. In that connection the court said:

'Applying these rules to the case before us, it is perfectly clear that Mrs. Steinberg enjoyed the status of an implied invitee when she entered the hotel lobby. This status continued so long as she used the facilities of the hotel reasonably included within the invitation. When, for her own pleasure and convenience, she crossed the bounds of the invitation and on her own initiative sought entertainment in the 'TV Room', and later in the 'Movie Room', she became at most a licensee. * * *' [Emphasis added.]

In the Steinberg case the Supreme Court said: 'On the general relationship between a hotel operator and visitors of a guest, see Williams v. Mayer, La.App., 4 So.2d 71.' In the cited Louisiana case, the court (4 So.2d at page 72) had said:

'It is our opinion that by the very nature of conducting a hotel, the keeper or operator invites the public to visit the premises and the hotel guests. Plaintiff had an implied if not a tacit invitation and permission to visit the guests of the hotel. We are further of the opinion that the owner and operator of a hotel is under duty to furnish safe premises which may be used by persons legally therein in the ordinary and reasonable way without injury. We are further of the opinion that the owner and operator of a hotel should provide reasonably safe ways of ingress and egress for those legally therein and should exercise care to keep a stairway and vestibule well lighted and free from obstructions. * * *'

Therefore, as held in the Steinberg case, the plaintiff in th instant case, who was a guest...