Potts v. Amis

• Decision Date: 15 August 1963
• Docket Number: No. 36665,36665
• Court: Washington Supreme Court
• Parties: John C. POTTS, Appellant, v. James W. AMIS, Respondent.

Page 777

62 Wn.2d 777

384 P.2d 825

John C. POTTS, Appellant, v. James W. AMIS, Respondent.

No. 36665.

Supreme Court of Washington, En Banc.

Aug. 15, 1963.

Gale P. Hilyer, Jr., Seattle, for appellant.

Murray & Dunham, Wayne Murray, Jr., Seattle, for respondent.

ROSELLINI, Judge.

In this personal injury action, the plaintiff alleged that the defendant had negligently struck him in the jaw with a golf club while he was a guest at the defendant's summer home. The trial court found that, while engaged in demonstrating the proper use of the club, the defendant had failed to exercise ordinary care and had struck the plaintiff, but that his action was not wilful or wanton. The court further found that the plaintiff had exercised ordinary care for his own safety, but had not exercised extraordinary care.

Upon these findings, the court held that the defendant was not liable for the injuries, inasmuch as he had no duty to exercise ordinary care to avoid inflicting harm upon his guest. The correctness of this holding is challenged on appeal.

We have adopted the general rule that a social guest, although he is invited to the premises, is a licensee, rather than an invitee, as regards his host's duties toward him. Dotson v. Haddock, 46 Wash.2d 52, 278 P.2d 338; McNamara v. Hall, 38 Wash.2d 864, 233 P.2d 852.

Traditionally, owners and occupiers of land have been accorded a certain immunity from tort liability, especially where injuries result from the condition or use of the premises. It has been felt that one in possession of land should not be required to take affirmative steps to make the premises safe for trespassers or gratuitous licensees. In accord with this view, we have consistently stated the rule to be that the duty toward a licensee or trespasser is not to wilfully or wantonly injure him. Hanson v. Freigang, 55 Wash.2d 70, 345 P.2d 1109; Dotson v. Haddock, supra; McNamara v. Hall, supra; Deffland v. Spokane Portland Cement Co., 26 Wash.2d 891, 176 P.2d 311; Christensen v. Weyerhaeuser Timber Co., 16 Wash.2d 424, 133 P.2d 797; Schock v. Ringling Bros. and Barnum & Bailey Combined Shows, 5 Wash.2d 599, 105 P.2d 838; Garner v. Pacific Coast Coal Co., 3 Wash.2d 143, 100 P.2d 32; Holm v. Investment & Securities Co., 195 Wash. 52, 79 P.2d 708; Buttnick v. J. & M., Inc., 186 Wash. 658, 59 P.2d 750; Kinsman v. Barton & Co., 141 Wash. 311, 251 P. 563; Hiatt v. Northern Pac. R. Co., 138 Wash. 558, 244 P. 994; Bolden v. Independent Order of Odd Fellows, 133 Wash. 293, 233 P. 273; Waller v. Smith, 166 Wash. 645, 200 P. 95; Smith v. Seattle School Dist., 112 Wash. 64, 191 P. 858; Gasch v. Rounds, 93 Wash. 317, 160 P. 962; and McConkey v. Oregon R. & Nav.Co., 35 Wash. 55, 76 P. 526.

However, in Christensen v. Weyerhaeuser Timber Co., supra, exceptions to this rule were noted. This court said:

'* * * the only duty which the owner of premises, or the proprietor of a business conducted thereon, owes to a mere licensee is the duty not to injure such licensee wantonly or willfully. * * * The rule as thus expressed does not exclude liability on the part of the owner proprietor for extraordinary concealed perils * * *, or for unreasonable risks incident to the possessor's activities.'

It is the contention of the plaintiff in this action that his injuries were the result of an 'unreasonable risk incident to the possessor's activities,' and that it was the duty of the defendant to exercise ordinary care, knowing that if he did not wield the golf club with care he might injure the plaintiff.

The defendant argues that this court has never applied the exception relating to activities and has in fact rejected it. It is true that this court has never expressly applied the rule, but it has rendered decisions in which its applicability has been tacitly recognized. In Schock v. Ringling Bros. and Barnum & Bailey Combined Shows, supra, children who had come to watch the unloading of a circus train were injured when they were struck by the tongue of a runaway wagon. This court said that the unloading operation was not an attactive nuisance, and that the defendant was liable only for wilful and wanton injury. However, it held as a matter of law that the defendant did all that reasonable care required, saying:

'If we look at the matter wholly aside from the relevancy of the attractive nuisance doctrine, and consider the case simply from the standpoint of appellant's duty under the circumstances to the spectators in general, whether adults or minors, we come to the same conclusion. If we proceed upon the theory that appellant was bound by the rule of reasonable care rather than by the 'wilfull and wanton negligence' rule, we are convinced that appellant fully complied with its duty when it repeatedly warned the multitude to stay away from the platform. Appellant was not an insurer, and in the exercise of reasonable care it was not required to suspend its operations until, by inspection and test, it had found every piece of machinery and equipment to be free from all possible defects.'

In the case of Waller v. Smith, supra, the plaintiff had parked his automobile in an area where logging operations were being carried on. A falling tree damaged the car. While this court said, in exonerating the logging operator, that his only duty was not to wilfully or wantonly injure the plaintiff's property, it held as a matter of law that there was no negligence. Again, the statement regarding the duty of the logger was not necessary to the decision.

Our research and that of of counsel have revealed only two other cases involving alleged active negligence on the part of a defendant. In Hiatt v. Northern Pac. R. Co., supra, the plaintiff, a trespasser, was killed by a train as he was proceeding along a railway track. This court held that it was for the jury to decide whether the crew of the train were guilty of wilful and wanton negligence, when they must have seen the plaintiff and other trespassers and a very short time thereafter made a flying switch, sending a car along after them without any lights or anyone on board to give warning.

This court was asked to apply the dictum of the Christensen case, supra, in McNamara v. Hall, 38 Wash.2d 864, 233 P.2d 852. There, the plaintiff was injured when an overloaded elevator in defendants' home fell. It was found that the complaint fell short of alleging that the defendants knew of the defective condition of the elevator; therefore, the act of the defendants in inviting the plaintiff to ride in it was not wilful or wanton.

In speaking of the exceptions to the rule set forth in the dictum of the Christensen case, this court said that the first exception required actual knowledge. In regard to the second exception, it said that the overloading of the elevator was only an action in entertaining guests, and

'* * * Whether this second exception is or is not recognized in this state, we need not now determine since we do not consider that the actions of the occupier in entertaining and accommodating his guests constituted an 'activity' within the meaning of the rule.'

In all the other cases proclaiming that an owner or occupier is liable only for wilful and wanton conduct, the injuries complained of have been caused, not by an activity of the defendant, but by some condition of the premises.

In Hanson v. Freigang, supra, the defendants left a punctured gasoline storage tank on their property. A 15-year-old boy, trespassing on the property, dropped a lighted firecracker in the tank and was injured when gasoline vapors in the tank were ignited. It was held that the defendants were not guilty of wanton misconduct in leaving the tank on their land in that condition, because they could not be expected to foresee that, in a high degree of probability, this would result in substantial harm to another.

In Dotson v. Haddock, supra, a church committee met at the home of one of its members, and another member was injured when she fell on the front steps of the home. The steps were in a state of disrepair. It was held that the condition of the steps was not an extraordinary concealed danger, requiring the defendant to warn the plaintiff of its presence.

The defendant in Deffland v. Spokane Portland Cement Co., supra, was held not liable for the death of a 13-year-old boy who was killed when he came in contact with high voltage wires on the defendant's property while searching for pigeons. He was a trespasser, or at most a licensee, and the attractive nuisance doctrine was held not to apply. The plaintiff in Christensen v. Weyerhaeuser Timber Co., supra, was killed when he fell from a wharf belonging to the defendant. At the time, he was endeavoring to string an electric light wire to the ship on which he was employed, and apparently received a shock from the connection.

In Garner v. Pacific Coast Coal Co., supra, two girls were injured while using a path over a disused coal mine refuse dump, and it was found that the owner did not have knowledge of the fact that because of spontaneous combustion, a bed of hot cinders had formed beneath the path. Consequently he could not be held guilty of wanton negligence in failing to warn the girls of the danger.

The plaintiff in Holm v. Investment & Securities Co., supra, was held to be an invitee, to whom the defendant hotel owner owed a duty to keep the halls and passageways in a reasonably safe condition. He was allowed to recover for injuries sustained when he fell through an open elevator shaft. Also, in Buttnick v. J. & M., Inc., supra, the plaintiff was an invitee, and it was held to be a jury question whether the defendant was negligent in not removing grease from the floor near a back or side door of the restaurant where he was a patron. In Kinsman v. Barton & Co., supra, the plaintiff, a licensee, stepped through a hole in the floor of a garage belonging to the defendant, who was exonerated. The plaintiff licensee in Bolden v. Independent Order of Odd...