Slobodzian v. Beighley

• Decision Date: 15 November 1960
• Parties: Marjorie SLOBODZIAN, a minor, by Elizabeth Slobodzian, her parent and natural guardian, and Elizabeth Slobodzian, in her own right, v. William BEIGHLEY, Appellant.
• Court: Pennsylvania Supreme Court

Page 923

164 A.2d 923

401 Pa. 520

Marjorie SLOBODZIAN, a minor, by Elizabeth Slobodzian, her

parent and natural guardian, and Elizabeth

Slobodzian, in her own right, v. William BEIGHLEY, Appellant.

Supreme Court of Pennsylvania.

Nov. 15, 1960.

Harry A. Heilman, Jr., Blair F. Green, Kittanning, for appellant.

James G. Callas, John C. Millard, Callas & Millard, Kittanning, for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R. JONES, COHEN, BOK, and EAGEN, JJ.

BOK, Justice.

The minor plaintiff fell into an open cellar-way behind a store and, with her mother as guardian, sued the owner. Defendant appealed when, following a jury's verdict for plaintiffs, his motions for a new trial and for judgment n. o. v. were overruled.

Three questions are presented: the defendant's negligence, the minor's contributory negligence, and her status as trespasser or gratuitous licensee. No trial errors are alleged.

The mis-en-scene is an open area or parking lot behind defendant's super-market at Main, Bridge, and Diamond Streets in Leechburg, Armstrong County, at ten o'clock on a November night. Main Street, running east and west, bounds the property's 119 feet of frontage on the north, but the building occupies only 96 1/2 feet of this length: at the eastern side of the building there is a 3-foot sidewalk and beyond it an 18-foot parking lot on defendant's property and bordering on Bridge Street, which forms the eastern boundary of the property. The western boundary consists of other buildings. The southern boundary is Diamond Street, which parallels Main. The market building does not run the full length of the lot, which is 120 feet, from Main to Diamond, but occupies only 99 1/2 feet. This leaves an open L-shaped area, all of it on the defendant's property, the southern arm 20 feet wide and the eastern 18 feet, and this is used for parking by the patrons of the market: the sidewalk allows them to pass from the front entrance on Main to the side and rear, in order to reach their cars, and it extends no farther south than the southern wall of the building. Nothing but a white line separates the parking area from Bridge and Diamond Streets: it is blacktopped and flush with them.

The cellar-way into which the minor plaintiff fell is roughly in the center of the rear of the market building: it is 16 feet long, 3 1/2 feet wide, and has nine steps leading to its bottom depth of 7 feet 1 inch. Its long northern side is the southern wall of the building, and it is used as a fire exit. There was no railing around it except a curbing 10 inches wide and 5 inches higher than the surrounding surface of the parking lot. The southern edge of the cellar-way is 18 feet from Diamond Street, and its eastern side about 60 feet from Bridge Street. An outside chimney extending 18 inches into the parking area forms part of its eastern wall.

There is a street light at the corner of Bridge and Diamond, and a system of private lights on the southern wall of the market, but the latter were turned out after closing the market: they were not lighted at the time of the accident, but there is evidence that the street light was then on.

The plaintiff, whose name is Marjorie, was on the street with three other girls, at one point intending to go to a dance. The town had a curfew and the girls had been warned by a policeman not to loiter. Going east on Main they met some boys they knew and stopped to talk with them in front of defendant's market. When someone shouted that cops were coming, Marjorie and two of the other girls began to run east on Main, then south on the sidewalk alongside the market, and at some sort of angle across the rear parking area on or towards Diamond Street. Marjorie said that it was dark and that suddenly she tripped and fell into what turned out to be the cellar-way, breaking her leg.

Defendant's first point is that Marjorie was a trespasser and was owed no duty beyond refraining from wanton conduct, or at least that if she was a gratuitous licensee in cutting short across the parking area from Bridge to Diamond she went beyond the area of her license by deviating too far towards the cellar-way and hence became a trespasser. It is hard to separate this question from those of negligence, original and contributory, since all of them depend on what Marjorie was doing and why she was where she was, and hence we will discuss the case as a whole.

There is evidence from a man who worked as police officer and photographer that the public used the sidewalk along the eastern wall of defendant's market to go south and then cut southwestwardly across the rear parking lot to Diamond Street. This would take them on the hypotenuse of a triangle along whose leg to their right was the cellar-way. People so cutting the corner would pass near but not close to the hole, depending on how sharply they were cutting the corner. In order to make his property inviting, defendant had eliminated any difference in height between his parking area and the two public streets that bounded it, and had provided a sidewalk on his own land as well. If the public used this unified system of public street and private way and parking area, defendant must be held to know what risks existed for the public to run and be held also to the duty to warn or safeguard against them.

The Restatement of the Law of Torts says, at Sec. 342:

'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 lend, without exercising reasonable care (i) to make the condition reasonably safe, or (ii) to warn them of the condition and the risk involved therein.'

And in comment 'd' under this section it is said that:

'The liability of a possessor of land who invites or permits gratuitous licensees to enter his land, is not based upon a duty to maintain it in safe condition. It is based upon his duty to disclose to them the risk which they will encounter if they accept his invitation or permission. He is required to exercise reasonable care either to make the land as safe as it appears or to disclose the fact that it is as dangerous as he knows it to be.'

This doctrine is related to our case law by Matthews v. Spiegel, 1956, 385 Pa. 203, 122 A.2d 696, 698, where we said:

'It is also true that, whereas the duty of a lessor to an invitee or business visitor is to exercise reasonable care to maintain the premises in safe condition, his only duty to a licensee is to refrain from wilfully or wantonly injuring him; he is under no liability to keep the premises in repair for the benefit of such licensee. Parsons v. Drake, 347 Pa. 247, 249, 250, 32 A.2d 27, 29. But there are two qualifications of this general rule of law, one,--which does not apply to this case--that the lessor is liable for injury occasioned by any affirmative or active negligence on his part in connection with activities conducted on the premises, Potter Title & Trust Co. v. Young, 367 Pa. 239, 244, 80 A.2d 76, 79; the other, which does apply, that he is likewise...