Shannon v. Butler Homes, Inc.

• Citation: 102 Ariz. 312,428 P.2d 990
• Decision Date: 14 June 1967
• Docket Number: No. 8319,8319
• Parties: , 26 A.L.R.3d 309 Cindy SHANNON, a minor, by Robert E. Shannon, her Guardian ad Litem, Appellant, v. BUTLER HOMES, INC., an Arizona corporation, and Don Larsen, Appellees.
• Court: Supreme Court of Arizona

Page 990

428 P.2d 990

102 Ariz. 312, 26 A.L.R.3d 309

Cindy SHANNON, a minor, by Robert E. Shannon, her Guardian ad Litem, Appellant, v. BUTLER HOMES, INC., an Arizona corporation, and Don Larsen, Appellees.

No. 8319.

Supreme Court of Arizona, In Banc.

June 14, 1967.

Kenneth Rosengren, Phoenix, for appellant.

O'Connor, Anderson, Westover, Killings-worth & Beshears and John P. Otto, Phoenix, for appellees.

STRUCKMEYER, Justice.

This action was brought by Robert E. Shannon as guardian ad litem of Cindy Shannon, a minor, age nine years, to recover for her injuries suffered when she 'collided with and broke' an 'Arcadia-style' plate glass door while a guest at the home of appellee Don Larsen. Appellees, Butler Homes, Inc., and Don Larsen, moved for summary judgment, and a judgment of dismissal was entered in the trial court. This appeal followed.

Other than the complaint and answer, the trial court had only an affidavit by the appellant's attorney and answers to certain interrogatories directed to appellees upon which to base its judgment. The affidavit contained no significant information. The interrogatories were, in general, inquiries into the nature and composition of the glass in the door and established nothing other than that the glass was 3/16th-inch heavy sheet or crystal. Consequently, this appeal must be tested as if appellees had sought, and the court had granted either a motion to dismiss under Rule 12(b), or a judgment on the pleadings pursuant to Rule 12(c), Rules of Civil Procedure, 16 A.R.S.

'It was proper for the court below to pass on the motion as one for summary judgment, but it was, under the circumstances, 'functionally the same as a motion to dismiss or a motion for judgment on the pleadings. " Mercantile National Bank at Dallas v. Franklin Life Insurance Company, 5 Cir., 248 F.2d 57, 59.

A motion for judgment on the pleadings tests the sufficiency of the complaint and if the complaint fails to state a claim for relief, judgment should be entered for the defendant. Well-pleaded allegations will be taken as true but conclusions of law are not admitted. Young v. Bishop, 88 Ariz. 140, 353 P.2d 1017.

The Action Against Butler Homes, Inc.

The complaint as against Butler Homes alleges, in effect, that appellee, having installed the door as the builder of the Larsen home, knew that it created a deceptive illusion of space and was a trap and failed to provide adequate warning by markings upon the door or to use laminated safety glass or glass of sufficiently strong qualities and characteristics; and that Butler Homes impliedly warranted the fitness thereof, which warranty extended to the appellant as an invited guest upon the premises.

The allegation of implied warranty adds nothing to appellant's case. The liability of a manufacturer of an article is in tort (see Phillips v. Anchor Hocking Glass Corp., 100 Ariz. 251, 413 P.2d 732, and concurring opinion of Justice Lockwood in Nalbandian v. Byron Jackson Pumps, 97 Ariz. 280, 399 P.2d 681), and it is not assumed by agreement but imposed by law. Crystal Coca-Cola Bottling Co. v. Cathey, 83 Ariz. 163, 317 P.2d 1094.

Upon completion and acceptance of the work by the owner, a contractor is not liable for tortious conduct to third persons for injuries thereafter suffered. Kennecott Copper Corp. v. McDowell, 100 Ariz. 276, 413 P.2d 749; Roman Catholic Church, Diocese of Tucson v. Keenan, 74 Ariz. 20, 243 P.2d 455. But the rule is otherwise where the work is inherently, intrinsically or abnormally dangerous, or so manifestly defective as to be imminently dangerous to third persons, E. I. Du Pont De Nemours & Co. v. Kissinger, 5 Cir., 259 F.2d 411, cert. den. 359 U.S. 950, 79 S.Ct. 736, 3 L.Ed.2d 683; Hale v. Depaoli, 33 Cal.2d 228, 201 P.2d 1, 13 A.L.R.2d 183; Schifano v. Security Building Company, 133 Cal.App.2d 70, 283 P.2d 306; Del Gaudio v. Ingerson, 142 Conn. 564, 115 A.2d 665; Paul Harris Furniture Co. v. Morse, 10 Ill.2d 28, 139 N.E.2d 275; Andrews v. Del Guzzi, 56 Wash.2d 381, 353 P.2d 422, absent circumstances that the danger was not discovered or obvious to the owner. Russell v. Arthur Whitcomb Co., 100 N.H. 171, 121 A.2d 781; Prosser, Torts, 2d Ed., § 85, p. 519.

It is our opinion that glass doors are like other common objects or conditions in and about a home. They are not so inherently or imminently dangerous to third persons that they can be said to be embraced within the exceptions to the rule.

'We do not think negligence ought to be found merely because the door was made of one large piece of glass. * * * A door of this kind is to be classed with other forms of construction such as various types, whether new or old, of doors, floors, stairs, and ramps, not out of repair, upon which it is possible for an invitee to receive injury, but which are not of such a character that danger is reasonably to be anticipated from them to persons exercising ordinary care.' Rosenberg v. Hartman, 313 Mass. 54, 46 N.E.2d 406.

The allegations that the glass door created a deceptive illusion, coupled with lighting conditions, the absence of markings on the door, and the lack of safety glass or glass of sufficiently strong qualities were not sufficient to bring Butler Homes, Inc., within the general rule of liability because plainly the condition thereby created was as obvious to the owner as to the builder. From the facts pleaded, it is evident that appellant did not state a cause of action against Butler Homes, Inc., and that a judgment of dismissal was proper. Cf. United States v. Thurston Co., D.C., 54 F.Supp. 201, aff'd 8 Cir., 149 F.2d 485, cert. den. 326 U.S. 744, 66 S.Ct. 58, 90 L.Ed. 444, rehg. den. 326 U.S. 808, 66 S.Ct. 138, 90 L.Ed. 493.

The Action Against Don Larsen

The complaint, as against Larsen, the owner of the property, when construed most favorably to appellant, discloses that Cindy Shannon was an invited guest at the Larsen home, that the glass door with which she collided created a deceptive illusion and was a trap by reason of the lighting conditions and absence of safety glass or signs or markings on the door, and that Larsen did not warn the minor appellant of the hazards and perils attendant to using 'Arcadia-style' plate glass doors. It was further alleged that the door was an attractive nuisance.

We first observe that this is not a case of attractive nuisance. The doctrine of attractive nuisance applies to children trespassers. MacNeil v. Perkins, 84 Ariz. 74, 324 P.2d 211, Downs v. Sulphur Springs Valley Electric Cooperative, 80 Ariz. 286, 297 P.2d 339.

Authorities are in agreement that, although a social guest may be on his host's property as the result of an express invitatation, he is only a licensee and is not entitled to the same care for his safety as one who is on the property of another as a business invitee. Prosser puts it this way:

'Thus all of the decisions are agreed that a social guest, however cordially he may have been invited and urged to come, is not in law an invitee, but is nothing more than a licensee, to whom the possessor owes no duty of inspection and affirmative care to make the premises safe for his visit. The reason usually given is that the guest understands when he comes that he is to be placed on the same footing as one of the family, and must take the premises as the occupier himself uses them, without any preparation for his safety; and that he understands that he must assume the risk of defective conditions unknown to the occupier, and is entitled at most to a warning of dangers that are known. There has been some undercurrent of dissent, as to whether this is really in accord with present social customs, and some writers have urged that the guest be treated as an invitee, but thus far the courts have not been induced to change their position.' Prosser on Torts, pp. 447--448.

Arizona is committed to the same rule.

'Having concluded the plaintiff was a guest and not an invitee, our next problem is to determine what duty the defendant owed to him. The rule seems to be settled on this point that the owners of the premises owe no duty to the guest other than to refrain from knowingly letting him run upon a hidden peril or wantonly or wilfully causing him harm. * * * '* * * However, the rule is that a host who knows of a concealed danger upon the premises is guilty of negligence if he...