Raney v. Roger Downs Ins. Agency
Decision Date | 06 May 1988 |
Citation | 525 So.2d 1384 |
Parties | Cassie Marie RANEY, et al. v. ROGER DOWNS INSURANCE AGENCY, et al. 87-10. |
Court | Alabama Supreme Court |
William J. Donald III of Donald, Randall, Donald & Hamner, Tuscaloosa, for appellants.
Clark Summerford and Kenneth D. Davis of Zeanah, Hust & Summerford, Tuscaloosa, for appellees.
This is an appeal from a summary judgment entered in favor of the defendants, Roger Downs Insurance Agency, Roger Downs, and Ray Kirkley. The plaintiffs, Cassie Marie Raney, a minor, and her parents, Ronald and Nancy Raney, sued the defendants on two counts: first, for alleged negligence and wantonness in causing or allowing Cassie to be injured while an invitee on their premises; and, second, in allowing a dangerous instrumentality within their control to injure her while she was a licensee on their premises.
The defendants operate an insurance agency in Tuscaloosa. They hired Nancy Raney to clean their offices on the weekends, while the offices were closed. Without the defendants' knowledge, Nancy often took her two small children along with her when she cleaned the offices. It was an injury to one of these children, Cassie, which occurred while Nancy was cleaning the offices, that precipitated this suit.
While using the bathroom in the offices, Cassie found an open container of white granular powder with a spoon sticking out of it on the bottom shelf of the bathroom. She mistook the substance for sugar, and put a spoonful in her mouth. The substance was in fact lye, and it caused painful burns to her mouth. She and her parents subsequently sued the defendants for punitive as well as compensatory damages.
The only issue presented is whether the trial court erred in granting summary judgment in favor of the defendants. In deciding whether there was a genuine issue of any material fact that would require submission of the case to a jury, we must examine the duty, if any, owed by the defendants to the minor plaintiff, and the applicability of the doctrine of dangerous instrumentality to these facts.
It is clear that Nancy Raney was an invitee upon the premises of Roger Downs Insurance Agency. She was on the premises at the request of Roger Downs and Ray Kirkley in order to perform a helpful or necessary service, the performance of which she had contracted to do. See, generally, 65 C.J.S. Negligence § 63(41)-(56) (1966); 62 Am.Jur.2d Premises Liability §§ 39-50 (1972).
The novel question presented for our determination is whether Cassie Raney obtained the status of an invitee by being on the premises with her mother. The duty of care owed to invitees is greater than that owed to mere licensees or trespassers. See, First National Bank of Mobile v. Ambrose, 270 Ala. 371, 119 So.2d 18 (1960); Kittrell v. Alabama Power Co., 258 Ala. 381, 63 So.2d 363 (1953); Great Atlantic & Pacific Tea Co. v. Keltner, 29 Ala.App. 5, 191 So. 633, cert. den., 238 Ala. 462, 191 So. 640 (1939).
The Raneys argue that because Cassie sometimes assisted her mother in cleaning the offices, she, too, was an invitee. In support of this proposition they cite a Georgia decision:
Jones v. Monroe Nursing Home, Inc., 149 Ga.App. 582, 254 S.E.2d 902 (1979).
The cases in Alabama have also applied the "economic interest" test in determining whether or not a plaintiff rises to the status of invitee. See, Kitchens v. United States, 604 F.Supp. 531 (M.D.Ala.1985) ( ); and Quillen v. Quillen, 388 So.2d 985 (Ala.1980); (nature of visit must bestow material or commercial benefit upon invitor). The nature of the invitee status, however, is also based upon knowledge, either actual or constructive, on the part of the occupier of the premises that there is a visitor upon the premises.
Jones is distinguishable from the case at bar, in that the owner of the premises in Jones had notice of the minor's presence on the premises. Here, there was no such knowledge, and none can be implied. The defendants could not reasonably expect that Mrs. Raney, in cleaning their offices on the weekends, would bring her small children with her.
Plaintiffs have failed to show that the defendants had any knowledge, either actual or constructive, that Cassie was on the premises. Cassie did not attain the status of invitee, and she was owed a different duty:
Tolbert v. Gulsby, 333 So.2d 129, 131 (Ala.1976). See, also, Foster v. Alabama Power Co., 395 So.2d 27 (Ala.1981). The owners' duty to Cassie, as either a licensee or a trespasser, was not to willfully or wantonly injure her, or not to allow her to be negligently injured after becoming aware of her peril.
Kilcrease v. Harris, 288 Ala. 245, 251, 259 So.2d 797, 801-02 (1972). (Citations omitted).
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