Scheibel v. Lipton

• Citation: 156 Ohio St. 308,102 N.E.2d 453
• Decision Date: 05 December 1951
• Docket Number: No. 32531,32531
• Parties: , 46 O.O. 177 SCHEIBEL v. LIPTON et al.
• Court: United States State Supreme Court of Ohio

Page 308

156 Ohio St. 308

102 N.E.2d 453, 46 O.O. 177

SCHEIBEL v. LIPTON et al.

No. 32531.

Supreme Court of Ohio.

Dec. 5, 1951.

Syllabus by the Court.

1. In tort law an 'invitee' means a business visitor, that is, one rightfully on the premises of another for purposes in which the possessor of the premises has a beneficial interest. A social guest is not a business visitor and is not an 'invitee' as that term is used in tort law.

2. A host is not an insurer of the safety of a guest while upon the premises of the host and there is no implied warranty on the part of a host that the premises to which a guest is invited by him are in safe condition.

3. A host who invites a social guest to his premises owes the guest the duty (1) to exercise ordinary care not to cause injury to his guest by any act of the host or by any activities carried on by the host while the guest is on the premises, and (2) to warn the guest of any condition of the premises which is known to the host and which one of ordinary prudence and foresight in the position of the host should reasonably consider dangerous, if the host has reason to believe that the guest does not know and will not discover such dangerous condition.

This is an action to recover damages for personal injuries allegedly suffered by the plaintiff on August 29, 1947, when he stepped into a depression in the lawn in front of the residence of the defendants.

The cause originated in the Common Pleas Court of Mahoning County where the jury awarded damages in the amount of $500 and judgment was rendered for that sum. Upon appeal to the Court of Appeals, the judgment was affirmed. The allowance of defendants' motion to certify the record brings the cause to this court.

The questions of law involved require a comprehensive statement of facts.

The defendants, Herman and Esther G. Lipton, are husband and wife and with their children lived at 222 Upland avenue in Youngstown. The residence, the title to which stood in the name of Mrs. Lipton, was located on a lot approximately 50 feet in width on the north side of Upland avenue and the house sat back from the sidewalk line some 30 or 40 feet. Their private driveway was along the westerly side of their lot. There was no private walk from their front entrance to the street but a private paved walk constructed close and parallel to the front of the house extended from the driveway to the front entrance. At the easterly end of the private walk there were two steps which led to a platform immediately in front of the front door. There was a hedge adjacent to the platform and extending the full length thereof easterly from the aforesaid steps so that access to the platform was had only by use of those steps. The front door was approximately in the center of the house and an outside bracket light was installed in the wall of the house on each side of the front door. There was a 'saucer shaped' depression or 'hole' in the front lawn, from two to three feet in width and from eight to twelve inches in depth (depending on which testimony is to be accepted), located about two feet south of the private walk above described and a few feet west of the steps. This depression was caused by the removal of a bush several months prior to the date of the accident and its existence during those months was known to the defendants.

Plaintiff, Adrian Scheibel, and his wife were friendly acquaintances of the defendants. Mrs. Lipton, on behalf of herself and her husband, invited Mr. and Mrs. Scheibel to spend the evening of August 29, 1947, at the Lipton residence. It was understood that Mr. Scheibel would be detained at his place of business and that he would not arrive until late in the evening. Mrs. Scheibel walked to the Lipton residence early in the evening and was not then accompanied by Mr. Scheibel. About an hour after Mrs. Scheibel's arrival the entire party at the Lipton home, consisting of Mr. and Mrs. Lipton, Mrs. Lipton's sister, her husband and Mrs. Scheibel, left the Lipton residence to call upon Mrs. Lipton's father and mother. That visit was so prolonged that Mrs. Scheibel did not return to the Lipton residence but was dropped off at her own home by Mr. and Mrs. Lipton when they returned near midnight. When they left the Lipton residence, Mrs. Lipton turned out the lights in the house except the kitchen light and did not turn on the outside lights at the front entrance. It was then very dark. There were no street lights in that immediate vicinity and there were no other lights at the front of the house. Shortly before midnight Mr. Scheibel proceeded from his place of business in his automobile to the Lipton residence intending to pick up his wife. This was his first visit to the Lipton residence and he was unfamiliar with the premises. He parked his automobile at the street and walked over the front lawn directly toward the front entrance. There were no lights either at the front of the house or inside except in the kitchen. He rang the front doorbell but got no response as Mr. and Mrs. Lipton had not yet returned. Mr. Scheibel then left the platform at the front entrance, went down the steps to the private walk, left the walk and turned to the left to retrace his steps over the front lawn. After taking one or two steps on the lawn he stepped with his right foot into the depression or hole previously described, as to the presence of which he had no knowledge and which in the darkness he did not see. This caused him to fall and he suffered a severe injury to his foot and ankle. This action for damages against Mr. and Mrs. Lipton resulted.

Leo Waldman, Youngstown, for appellee.

William E. Pfau and William E. Pfau, Jr., Youngstown, for appellants.

MIDDLETON, Judge.

The problem before the court is to determine the relationship existing and the duties owed as between the defendants and the plaintiff, Adrian Scheibel, who was upon defendants' premises as a social guest by invitation. Considerable difficulty has been experienced by courts and text writers in classifying the relationships between the possessors of premises and those who for various reasons come upon the premises. It is obvious that the plaintiff in this case was not a trespasser. It is equally clear that he was not a business visitor. Was he a mere licensee or was he, being a social guest by invitation, one to whom duties were owed other than would be owed to a mere licensee? This court has not heretofore decided a case involving this precise question.

2 Restatement of the Law of Torts, Chapter 13, is devoted to a discussion of liability for condition and use of land. In Section 329 thereof the term, 'trespasser,' is defined. In Section 330 appears the following definition of 'licensee': '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.'

In Section 331, 'gratuitous licensee' is defined as follows:

'A gratuitous licensee is any licensee other than a business visitor as defined in Section 332.' As comment concerning this definition the following then appears:

'a. The phrase 'gratuitous licensee' includes three types of persons.

'1. A licensee whose presence upon the land is solely for the licensee's own purposes, in which the possessor has no interest, either business or social, and to whom the privilege of entering is extended as a mere favor by express consent or by general or local custom.

'2. The members of the possessor's household, except boarders or paying guests and servants, who, as stated in Section 332, Comments f and g are business visitors.

* * *

* * *

'3. Social guests who, in a sense, are persons temporarily adopted into the possessor's family.'

The statement of the law set forth in Section 342 reads:

'A possessor of land is subject to liability for bodily harm caused to gratuitous licensees by a natural or artificial condition thereon if, but only if, he

'(a) knows of the condition and realizes that it involves an unreasonable risk to them and has reason to believe that they will not discover the condition or realize the risk, and

'(b) invites or permits them to enter or remain upon the land, without exercising reasonable care

'(i) to make the condition reasonably safe, or

'(ii) to warn them of the condition and the risk involved therein.'

The 'comment' under the above-quoted statement contains the following:

'A possessor of land owes to a gratuitous licensee no duty to prepare a safe place for the licensee's reception or to inspect the land to discover possible or even probable dangers.

'If the license is gratuitous, the privilege to enter is a gift and the licensee, as the recipient thereof, is entitled to expect nothing more than a disclosure of the conditions which he will meet if he acts upon the license and enters, in so far as those conditions are known to the giver of the privilege.

'A member of the possessor's family or his social guest is also entitled at most to knowledge of such dangerous conditions as the possessor knows.'

Thus it appears than even though the authors of the Restatement classify social guests as gratuitous licensees they consider that the possessor of the premises is under a duty to exercise reasonable care to warn the guest of any condition involving an unreasonable risk concerning which the possessor has knowledge and which the possessor has reason to believe that the guest will not discover or realize the risk thereof.

3 Cooley on Torts (4 Ed.), Section 440, makes the following statement: 'It has been stated in a preceding section that one is under no obligation to keep his premises in safe condition for the visits of trespassers. On the other hand, when he expressly or by implication invites others to come upon his premises, whether for business or for any other purpose, it is his duty to be reasonably sure that he is not inviting them into danger, and to that end he must exercise ordinary care...