Roan v. Bruckner

• Decision Date: 03 June 1966
• Docket Number: No. 36244,36244
• Citation: 180 Neb. 399,143 N.W.2d 108
• Parties: Eda V. ROAN, Appellant, v. James BRUCKNER, Appellee.
• Court: Nebraska Supreme Court

Page 108

143 N.W.2d 108

180 Neb. 399

Eda V. ROAN, Appellant, v. James BRUCKNER, Appellee.

No. 36244.

Supreme Court of Nebraska.

June 3, 1966.

Syllabus by the Court

1. In the absence of express contract to the contrary, a tenant takes demised premises as he finds them, and there is no implied warranty by the landlord that they are safe or fit for occupancy.

2. A landlord is under no duty to change the visible form and mode of construction of leased premises in order to make the premises safe for his tenant, nor is he bound to remove obvious sources of danger; as to these the tenant assumes the risk.

3. The general rule is that guests and invitees of a tenant derive their right to enter upon leased premises through the tenant, and have the same but no greater right to proceed against the landlord for personal injuries resulting from alleged defects on the premises than the tenant has.

4. Subject to specific exceptions, the lessor of land is not liable for bodily harm caused to his lessee, or others upon the demised land with the consent of the lessee or sublessee, by any dangerous condition, whether natural or artificial, which existed when the lessee took possession.

5. A licensee may be defined as a person who is privileged to enter or remain upon the premises of another by virtue of the possessor's express or implied consent, but who is not a business visitor.

6. The real difference between an invitee and a licensee lies in the purpose of the invitation. If the invitation relates to the business of the one who gives it or for the mutual advantage of both parties of a business nature, the party receiving it is an invitee. If it is an invitation for the convenience, pleasure, or benefit of the person enjoying the privilege it is only a license and the person receiving it is a licensee.

Frost, Meyers & Farnham, Frederick J. Stoker, Omaha, for appellant.

Gross, Welch, Vinardi, Kauffman & Schatz, Omaha, for appellee.

Heard before CARTER, SPENCER, BOSLAUGH, BROWER, SMITH and McCOWN, JJ., and SCHEELE, District Judge.

SCHEELE, District judge.

This is an action in which plaintiff seeks to recover damages for personal injuries sustained by her on July 25, 1962, when she fell down the basement stairway in a house owned by defendant and leased by him to plaintiff's granddaughter, Joanne Schoenfeld.

The case proceeded to trial before a jury and at the conclusion of plaintiff's evidence, defendant moved for a dismissal or in the alternative for a directed verdict. The trial court sustained defendant's motion and dismissed the action. Plaintiff's motion for a new trial was overruled and plaintiff has perfected her appeal.

In sustaining defendant's motion to dismiss, the trial court made specific findings in substance, that plaintiff's status was that of a licensee on the premises; that the duties and liabilities of a landlord to persons on leased premises by invitation of the tenant are ordinarily the same as those owed to the tenant; that a landlord is not liable for bodily harm caused to his tenant, or others upon the demised land with consent of the tenant, by reason of any dangerous condition, whether natural or artificial, which existed when the tenant took possession, but only for wanton or willful acts or for failure to warn of a hidden peril or an unknown danger; that the condition on the premises was not a hidden peril or unknown dangerous condition and that plaintiff had knowledge and notice of the condition; that defendant was not guilty of negligence; and that plaintiff's contributory negligence was the proximate cause of the accident.

Plaintiff assigns as error the findings and ruling of the trial court in dismissing her action and in overruling her motion for a new trial.

The undisputed evidence introduced by plaintiff at the trial may be summarized as follows:

On July 25, 1962, plaintiff who was 79 years old at the time, accepted the invitation of her granddaughter, Joanne Schoenfeld, to visit the latter's home at 3603 Corby Street, Omaha, Nebraska. The occasion was a family gathering attended by several of plaintiff's children and grandchildren. The invitation included giving plaintiff a home permanent. Plaintiff brought her own preparation and was given the home permanent by one of her daughters and several granddaughters in the kitchen of Joanne's home. After the permanent plaintiff offered her granddaughters some money to pay for the permanent and put some money on the kitchen table. There is evidence that the granddaughters did not accept the money. Neither Joanne nor her husband were in the hairdressing business nor did they or anyone else conduct any type of business in the home.

When plaintiff first arrived at the premises, for her first visit, Joanne showed her around the house and showed her the bathroom and unhooked and opened the door to the basement which adjoined the door to the bathroom. Plaintiff then commented on how steep the basement stairway was. In order to show the basement stairway to plaintiff it was necessary to unhook the door and after showing plaintiff the basement stairway, Joanne again hooked the door shut.

The basement door and bathroom door were practically identical. They were 6 inches to 8 inches apart, on the same level, and both swung inward. The door knobs were right together. Both were of the same white color. They were in the hallway between the kitchen and dining room and there was no artificial light in the hallway although windows in an outside door in the hallway and in adjoining rooms admitted some natural light. Both doors opened inward. The basement door opened directly onto a flight of steps which had no landing or handrails. Light switches for both the basement stairway and bathroom were inside each door.

Shortly after the permanent was completed, plaintiff, who had been sitting at the kitchen table, asked Joanne where the bathroom was. Joanne said 'Around the corner.' Plaintiff then came out of the kitchen, opened to hook on the basement door, took one step and disappeared in the stairwell, sustaining severe injuries in the fall. She did not recognize it was the door to the basement.

Joanne and her husband had rented the five room frame house from defendant in the spring of 1962. Defendant had purchased the house about 1949 and had lived in it about 10 years before renting it out. When he bought the house, it had a dirt basement with the entry to the basement on the outside. He remodeled the house about 1952 by building a wooden block foundation on the southern part of the house and adding a kitchen and bathroom, doing most of the work himself. He installed the hook on the basement door. No structural changes or remodeling were done after the premises were rented to Joanne and her...