Sendelbach v. Grad

• Citation: 246 N.W.2d 496
• Decision Date: 15 October 1976
• Docket Number: No. 9212,9212
• Parties: Mary Ann SENDELBACH, Plaintiff and Appellant, v. Edward GRAD and Elizabeth Grad, Defendants and Appellees. Civ.
• Court: United States State Supreme Court of North Dakota

Page 496

246 N.W.2d 496

Mary Ann SENDELBACH, Plaintiff and Appellant, v. Edward GRAD and Elizabeth Grad, Defendants and Appellees.

Civ. No. 9212.

Supreme Court of North Dakota.

Oct. 15, 1976.

Syllabus by the Court

1. An invitee is owed a duty of reasonable care by a landowner to prevent his injury.

2. The standard of liability for injuries caused by an animal to a person on the premises of the possessor of the animal is no different than the standard regarding injuries to a visitor caused by other means.

3. Where the trial court instructed the jury that when an animal's owner knew or should have known of a dangerous propensity of the animal, he must exercise reasonable care to a guest, it was essentially equivalent to giving an instruction on the 'hidden peril' exception to the general standard of care owed a licensee.

4. The refusal by a trial judge to give a requested instruction cannot be error where a clear, concise instruction is given which embodies the substance of the requested instruction.

5. For reasons stated in the opinion, the order appealed from is affirmed.

Farhart, Rasmuson, Olson & Lian, Minot, for plaintiff and appellant; argued by Steven C. Lian, Minot.

McClintock, Butz & Kraft, Rugby, for defendants and appellees; argued by Carlan J. Kraft, Rugby.

ERICKSTAD, Chief Justice.

Mary Ann Sendelbach received serious injuries to her left leg as the result of being bitten by a dog owned by Edward and Elizabeth Grad. The incident occurred at the Grads' farm on April 30, 1973. A suit to recover damages from the Grads, based upon negligence and strict liability, resulted in a jury verdict for the Grads. This appeal is taken from an order of the McHenry County District Court denying Mrs. Sendelbach's motion for a new trial.

Mrs. Sendelbach asserts that the trial court erred in refusing to adopt her requested instructions applying a strict liability standard for injuries caused by animals and defining 'vicious propensity', and also in failing to find, as a matter of law, that she was on the Grad premises as an invitee at the time of her injury.

When Mrs. Sendelbach and her husband retired from farming, they gave their chickens to Edward and Elizabeth Grad. The Grads, in return, gave the Sendelbachs free eggs for a period of time, after which the Sendelbachs occasionally purchased eggs from the Grads.

The Sendelbachs drove to the Grad farm on April 30, 1973 to purchase three dozen eggs. When they found no one at the house, they went to the barn where Mrs. Grad was milking the cows. There were two eggs short of three dozen stored in the barn. As Mrs. Grad was too busy to leave the barn, Mrs. Sendelbach offered to gather the two eggs from the chicken coop herself. It is unclear from the record whether Mrs. Grad assented to this.

In order to get to the coop, Mrs. Sendelbach had to pass through a gate near a doghouse. As she walked past the doghouse, Queenie, the Grads' dog came from behind her and bit her on the lower left leg.

There was no evidence that the dog had ever bitten another human being. Mr. Grad testified that the dog would nip at the heels of the cattle when herding them, but that it would only go after the cattle on command. The dog had given birth to a litter of pups a few days prior to the incident and all but one had been disposed of. Mr. Grad testified that the dog was 'not as friendly' on the day in question and was 'upset'. He testified that his young grandchildren had played with the dog and pups without incident that weekend.

We shall first examine Mrs. Sendelbach's argument that she was, at the time and place of the injury, an invitee as a matter of law. The jury was instructed as to the distinction between a licensee and an invitee and, in response to a special verdict question, found that Mrs. Sendelbach was a licensee at the time of the injury.

The import of the finding that Mrs. Sendelbach was a licensee rather than an invitee at the time of the injury is with regard to the standard of care the Grads owed her. An invitee is owed a duty of reasonable care by the landowner to prevent his injury. Johanson v. Nash Finch Co., 216 N.W.2d 271 (N.D.1974); Huus v. Ringo, 76 N.D. 763, 39 N.W.2d 505 (1949).

In general, the only duty a possessor of land owes a licensee is to refrain from willfully and wantonly injuring him. Werth v. Ashley Realty Co., 199 N.W.2d 899 (N.D.1972); Costello v. Farmers' Bank of Golden Valley, 34 N.D. 131, 157 N.W. 982 (1916). We recognize exceptions to this general rule, to be applied when necessary. Werth v. Ashley Realty Co., supra.

The determination of whether one is a licensee or invitee on the premises of another necessitates defining those terms with reference to the policies of the distinction.

It has been stated that the higher standard of care imposed on a landowner regarding an invitee is the price paid for the economic benefit obtained. Restatement of Torts, §§ 332, 343, Comment A; see W. Prosser, Torts, p. 386 (4th Ed. 1971). Under the so-called 'economic benefit' test, resulting from this reasoning, a visitor acquires the status of invitee when his presence relates to business of at least potential pecuniary profit to the possessor. E.g., Schwerdtfeger v. State, 148 Cal.App.2d 335, 306 P.2d 960 (1957); McNulty v. Hurley, 97 So.2d 185 (Fla.1957).

The other prevent theory justifying the distinction is commonly referred to as the 'invitation theory'. Under this view, an express or implied invitation by the occupier of the land creates the invitee status. The invitation must be such that it represents that the invitor has exercised reasonable care in making the premises safe for the invitee. E.g., Hanson v. Town and Country Shopping Center, Inc., 259 Iowa 542, 144 N.W.2d 870 (1966); Dowd v. Portsmouth Hospital, 105 N.H. 53, 193 A.2d 788, 95 A.L.R.2d 986 (1963).

Many cases, rather than flatly rejecting the economic benefit test, adopt both tests to be used alternatively. E.g., Preston v. Sleziak, 383 Mich. 442, 175 N.W.2d 759 (1970); Dowd v. Portsmouth Hospital, supra.

The Restatement (Second) of Torts, § 332 (1965) defines two classes of invitees:

'(1) An invitee is either a public invitee or a business visitor.

'(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.

'(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.'

The district court's instructions defining invitee spoke only of a business visitor, making no reference to the term public invitee. The appellant's reply brief of Mrs. Sendelbach argues that comments regarding business visitors are 'more applicable to the instant case.' Thus we will limit our treatment of invitees to that category.

The real crux of the distinction between licensees and invitees is as stated in Comment A to the Restatement (Second) of Torts, § 332, Supra:

'Invitees are limited to those persons who enter or remain on land upon an invitation which carries with it an implied representation, assurance, or understanding that reasonable care has been used to prepare the premises, and make them safe for their reception. . . .'

In this case there was testimony that eggs were sold to anyone who called; that the eggs were never advertised for sale; that the eggs were produced primarily for use by the Grad family; that there were extra eggs once or twice a week; that the Sendelbachs previously would call ahead before coming for eggs--but did not do so on the day of the injury; that the Sendelbachs usually visited socially when they came for eggs; that this was the first time Mrs. Sendelbach went to the barn for eggs. Mrs. Sendelbach testified that the reason she purchased the eggs was because they were fresh, not because of the price. It is unclear from the evidence whether Mrs. Grad assented to Mrs. Sendelbach's going to the chicken coop.

This evidence is inconclusive as to whether the circumstances of Mrs. Sendelbach's presence on the Grad farm, and particularly at the specific place of her injury, were such as to imply a representation of reasonable care by the Grads in making the premises safe for her. Nor is the evidence conclusive as to whether the sale of eggs was in expectation of a pecuniary profit or was merely a service to a friend who wanted farm fresh eggs. We cannot say that reasonable men could draw but one conclusion from the facts presented. Thus, the trial court was correct in refusing to rule that Mrs. Sendelbach was, at the time of her injury, an invitee as a matter of law. See e.g., Kresel v. Giese, 231 N.W.2d 780 (N.D.1975); Gleson v. Thompson, 154 N.W.2d 780 (N.D.1967); Degenstein v. Ehrman, 145 N.W.2d 493 (N.D.1966).

It was stated in Mrs. Sendelbach's brief that 'the plaintiff has no quarrel with the definition' of invitee as given in the jury instructions, her argument being only that the court should have applied that definition to find her an invitee as a matter of law. Therefore, we need not rule on the correctness of the definition.

Mrs. Sendelbach also maintains that the trial court erred in its instruction as to the common law doctrine regarding dog bites. Her proposed jury instruction on that point, which was rejected by the trial court, reads (in part) as follows:

'One who keeps or owns an animal which he or she knows or should know is vicious or dangerous to people is liable to any person injured by the animal irregardless (sic) of any negligence by the defendants.'

The instruction given by the court adopted the language of the appellant's proposed instruction, but added a due care standard to be applied if viciousness and the owner's knowledge thereof is found:

'An owner is not liable for personal injuries inflicted by his dog unless the owner knew or reasonably should have known that the dog was dangerous or vicious. One who owns...