Ralls v. Caliendo

• Decision Date: 21 January 1967
• Docket Number: No. 44597,44597
• Parties: Carrie D. RALLS, Appellant, v. Dan CALIENDO et ux., Appellee.
• Court: Kansas Supreme Court

Page 862

422 P.2d 862

198 Kan. 84

Carrie D. RALLS, Appellant, v. Dan CALIENDO et ux., Appellee.

No. 44597.

Supreme Court of Kansas.

Jan. 21, 1967.

Syllabus by the Court

1. Where one is invited to come upon the premises of the owner or occupier as a guest for social purposes, the guest is, in a legal sense, a mere licensee, even though he was expressly invited.

2. Ordinarily, the only duty an owner or occupier of premises owes to a mere licensee is the duty to refrain from willfully, intentionally or recklessly injuring him.

3. The record in an action to recover damages for personal injuries sustained by the plaintiff in the defendants' home where she was expressly invited to attend a family Christmas dinner, is examined, and, as set forth in the opinion, it is held: The evidence constituted nothing more than ordinary negligence and was insufficient to establish reckless conduct on the part of the defendants, and the district court did not err in sustaining their motion to dismiss the action.

Patrick F. Kelly, Wichita, argued the cause, and John C. Frank, Wichita, was with him on the briefs for appellant.

Roger M. Sherwood, Wichita, argued the cause, and W. A. Kahrs, Robert H. Nelson, H. W. Fanning, Richard C. Hite, Darrell D. Kellogg and Richard L. Honeyman, Wichita, were with him on the briefs for appellees.

FATZER, Justice.

This was an action to recover damages for personal injuries sustained by the plaintiff-appellant, Mrs. Carrie D. Ralls, as a result of a slip and fall sustained in the home of the defendant-appellees, Dan and Mabert Caliendo.

The case was tried to a jury and at the close of the plaintiff's evidence, the defendants moved to dismiss the action, or in the alternative, for a directed verdict. After hearing argument, the district court made findings of fact, and sustained the motion to dismiss and discharged the jury. The plaintiff has appealed.

The parties will be referred to as they were designated in the district court, or as Mrs. Ralls, Mrs. Caliendo or Mr. Caliendo.

The depositions of both Mr. and Mrs. Caliendo were taken by the plaintiff prior to the trial and both testified as witnesses for the plaintiff at the trial. Portions of both depositions were read to the jury and the plaintiff includes in her statement of points, erroneous rulings of the district court excluding portions of both depositions.

The plaintiff and her daughter, Lucille R. Thomas, at the express invitation of the defendants, went to their home on December 25, 1963, to attend a family Christmas dinner. The plaintiff is an aunt of Mrs. Caliendo. She was an elderly woman eighty-five years of age, and prior to December, 1963, had broken one of her ankles. However, she had completely recovered and was rather active prior to her fall in the defendants' home on Christmas Day as hereafter related, although she had some limitation with respect to her vision.

Upon arriving at the defendants' home, the plaintiff walked throughout the house, and prior to the serving of dinner, she walked from the living room and dining room into the kitchen toward the recreation or family room. To reach the family room, one would walk through the kitchen to a corner where a refrigerator with an ice making machine was located, past the refrigerator into a narrow entrance and down two or three steps to the family room. The defendants owned a dog and kept its water pan which had a 'tippy' base, near the refrigerator. There was always water spilled around the dog pan.

When the plaintiff entered the kitchen, Mrs. Caliendo and her mother were busy preparing the dinner for fifteen or sixteen people. Mrs. Caliendo testified she saw her aunt walking through the kitchen but did not pay much attention or caution her; that she was 'kinda weak and frail,' and was, 'holding onto the refrigerator'; that, 'she went around the side of the refrigerator to hold onto the wall evidently because I turned around just as she was pawing at the wall and the wall ran out and she just went out into the other room (family room) but she slipped on something right there,' near where the dog pan was.

Mrs. Caliendo further testified she knew the plaintiff was an elderly woman but expected her to walk through the kitchen; that she was aware of her ankle injury and that she was not as capable of getting around or as steady on her feet as an ordinary person; that she (Mrs. Caliendo) knew ice cubes had fallen on the floor that day prior to the accident because the children had been filling water glasses with ice cubes out of the ice making machine and her husband was mixing drinks for the guests and used ice cubes from the machine; that she cautioned the children to, 'Be careful; quit making such a mess'; that ice cubes would fall and she would kick them or the children would kick them under the refrigerator and they would melt and run out, not in the direct path to the family room but in the path the plaintiff took; that, 'there had been water on the floor in times past, plenty of times, they are always dropping ice cubes,' and that she knew there was water on the floor in this particular area before the accident but just did not stop to mop while she was getting dinner. She further testified her husband had previously fallen in the area where the plaintiff fell.

Mr. Caliendo testified he was a builder and that the kitchen had a vinyl linoleum covering with a smooth finish and the floor was in good repair at the time of the plaintiff's fall; that he had a bar in the kitchen near the refrigerator and was mixing drinks for guests; that he would get ice cubes out of the ice making machine and that, 'you drop one or two ice cubes when you get a handful from the ice maker'; that when he would mix drinks for guests he would 'frequently grab a handful of ice cubes from a tray and more often than not one slips and this wasn't the first time that there had been water there as a result of melting ice cubes and as a result of one of these cubes falling from my hand'; that it had 'happened a dozen times,' and, 'that's why after the plaintiff's fall I immediately saw that there was water there right at the threshold (to the family room) which I assume was the cause of her slipping.' He further testified the narrow opening between the kitchen and the family room was reasonably close to the refrigerator; that the dog pan located there was unsubstantial and had since been replaced with a substantial one; that immediately after the plaintiff's fall, he saw water on the floor at the threshold; that the 'puddle of water' was at the landing where the vinyl ends and the steps begin, but there was no water in the family room, and that it was his opinion the plaintiff slipped on some water that existed near the threshold, causing her to fall. Mr. Caliendo did not see the plaintiff fall and testified he was satisfied he knew there was water there prior to the accident; that after the accident he told his wife to wipe up the water so no one else would slip, and that it 'appeared to be a dangerous condition.'

As indicated, the district court made findings of fact which read:

'That the Plaintiff walked through the kitchen into the family room or rumpus room.

'That she fell.

'That there was water on the floor at the time that she walked through.

'That the water came from either the dog pan or from the melting of ice cubes.

'That the Defendants should have known that the water might be there.'

In sustaining the motion to dismiss, the district court stated:

'To me, that is the most favorable light that we have as far as the Plaintiff is concerned. The Plaintiff in this case is a licensee, and therefore the duty of the Defendants was such that their actions or omissions would have to be reckless in order for the Plaintiff to recover. As I understand it, in this jurisdiction the term 'recklessness' is a stronger term than that of ordinary negligence; that their conduct must be such as to evince disregard of or indifference to the consequences under the circumstances, involving danger to life or safety of others.

'Under the facts, as I see it, most favorable to the Plaintiff, the acts or omissions of the Defendants constitute nothing more than ordinary negligence which is not sufficient to sustain a cause of action or entitle the Plaintiff to recover for the injuries she received as a result of this fall.'

While the plaintiff concedes the accepted rule in Kansas is that, 'a host owes to his licensee guest a duty to refrain from willful, wanton or reckless conduct,' this court has not had occasion to inquire into the status of a social guest, that is, one who is expressly invited to the owner or occupier's home, and the duty owed to him by his host. Where, as here, the plaintiff is a social guest in the defendants' home, the great weight of Anglo-American authority classifies him as a bare licensee, even though he was expressly invited. (Southcote v. Stanley, 1 H. & N. 247 (Ex.1856); Sanders v. Brown, 73 Ariz. 116, 238 P.2d 941; Laube v. Stevenson, 137 Conn. 469, 78 A.2d 693, 25 A.L.R.2d 592; Comeau v. Comeau, 285 Mass. 578, 189 N.E. 588, 92 A.L.R. 1002; Vogel v. Eckert, 22 N.J.Super. 220, 91 A.2d 633; Curren v. O'Connor, 279 App.Div. 1018, 111 N.Y.S.2d 714; cases collected in Note, 25 A.L.R.2d 598.) See, also, Busch v. Gaglio, 207 Va. 343, 150 S.E.2d 110; Goldberg v. Straus, Fla., 45 So.2d 883; Harper on Torts, 3d Ed., Sec. 98; Restatement of the Law of Torts (1934), Sec. 342; Anno. 92 A.L.R. 1005.

Our decisions conform to the foregoing general rule. The plaintiff must be regarded as a mere licensee in the defendants' home at the time she slipped and fell, causing her injuries. In Steinmeyer v. McPherson, 171 Kan. 275, 232 P.2d 236, it was held:

'A licensee is a person who is privileged to enter or remain upon land by virtue of the possessor's consent, whether given by invitation or permission.

'Ordinarily the only duty an owner or occupant of premises owes to a mere licensee is...