Smith v. Arbaugh's Restaurant, Inc., No. 23748.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: BAZELON, , and WRIGHT and LEVENTHAL, Circuit
• Citation: 469 F.2d 97
• Parties: Ralph D. SMITH and Thelma Smith, Appellants, v. ARBAUGH'S RESTAURANT, INC., a body corporate.
• Decision Date: 30 June 1972
• Docket Number: No. 23748.

469 F.2d 97 (1972)

Ralph D. SMITH and Thelma Smith, Appellants,
v.
ARBAUGH'S RESTAURANT, INC., a body corporate.

No. 23748.

United States Court of Appeals, District of Columbia Circuit.

Argued December 14, 1971.

Decided June 30, 1972.

Rehearing Denied January 5, 1973.

469 F.2d 98

Mr. Harry W. Goldberg, Washington, D. C., with whom Messrs. Max M. Goldberg and Morris Altman, Washington, D. C., were on the brief, for appellants.

Mr. Edward C. Donahue, Rockville, Md., with whom Mr. E. Gwinn Miller, Rockville, Md., was on the brief, for appellee.

Before BAZELON, Chief Judge, and WRIGHT and LEVENTHAL, Circuit Judges.

BAZELON, Chief Judge:

This is an appeal from a jury verdict for the appellee after trial on appellant Smith's claim that Arbaugh's negligently maintained a set of greasy metal stairs on which he fell and was injured. The relevant facts are not in dispute.

On March 4, 1966, the appellant Ralph Smith, a Health Inspector in the employment of the District of Columbia, was directed by his supervisor to inspect the barbecue kitchen in appellee's restaurant. A grease fire had occurred in one of the barbecue pits several weeks previously, and the purpose of the inspection was to determine whether kitchen repairs had been completed.

The barbecue kitchen was located in the basement of a building adjacent to the premises of the actual restaurant. Large quantities of spareribs were barbecued in two pits in the basement, transported up approximately twenty metal steps and carried into the kitchen of the restaurant building to be stored before serving to patrons.

On his tour of inspection, appellant Smith descended these metal stairs to examine the barbecue pits. Just before reaching the bottom, his left foot skidded out from under him and he fell backwards, losing his grip on the handrail. Smith landed on his back and bounced to the bottom of the stairs. As a result of this fall, Smith was hospitalized, lost substantial amounts of time from work, incurred large medical expenses, and eventually retired on disability from his employment.

Smith and his wife commenced this action in the District Court seeking $65,000.00 in damages for personal injury and loss of consortium resulting from the negligence of the defendant corporation in creating, and failing to correct or warn the plaintiff of, a hazardous condition on its premises — namely, worn, wet and slippery metal steps with accumulated grease thereon. Trial was held in May of 1969. Both Smith and his supervisor testified that they had observed grease on the steps, which were also smooth and rounded from continuous wear. James Lane, the barbecue cook, testified for the defendant and substantiated the story of Smith's fall. He also stated that cartons of uncooked spareribs were delivered to the barbecue kitchen twice a day. At the close of the trial, the jury returned a verdict in favor of the defendant.

Smith moved for a new trial on the grounds that the trial court erred in instructing the jury to determine for itself whether Smith was a "business invitee" or merely a "licensee" on Arbaugh's premises, and thus whether Arbaugh's owed him the duty of care to keep the premises reasonably safe or merely the duty of warning him of any known but concealed dangers.¹ This motion was denied.

469 F.2d 99

Smith maintained on appeal² that the undisputed facts reveal the business purpose of his visit to Arbaugh's, and that therefore the trial court should have ruled as a matter of law that he was a "business invitee" toward whom Arbaugh's owed a duty of reasonable care.³ He contends that the verdict in favor of the defendant could have been based on the jury's erroneous decision that Smith was instead a "licensee" toward whom a lesser duty is owed, and that he is therefore entitled to a new trial with proper jury instructions.

I.

In examining this contention, we are once again struck by the awkwardness of fitting the circumstances of modern life into the rigid common law classifications of trespassers, licensees, and invitees. More importantly, we do not believe the rules of liability imposed by courts in the eighteenth century are today the proper tools with which to allocate the costs and risk of loss for human injury.

Ordinarily, liability for negligence is based on the failure to exercise reasonable care in the conduct of one's personal activities.⁴ However, the landowner/occupier's⁵ duty of care — the actions he should take by reason of dangerous conditions on his property — depends solely on the circumstances of the injured party's entry onto his property.⁶ To the trespasser, the landowner owes a duty only to refrain from

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intentional, wanton or willful conduct and from maintaining a "hidden engine of destruction."⁷ Toward a licensee, the landowner must refrain from active negligence, which includes failure to warn of known but hidden perils.⁸ Only for the invitee must the landowner exercise ordinary care and prudence to render his premises reasonably safe for the visit.⁹ These distinctions are crucial for a plaintiff's case, since whether Arbaugh's will be held liable for maintaining its greasy stairs will depend not on the jury's evaluation of this conduct, but largely on whether the injured party happened to be an employee, a Health Inspector, a fireman, a patron invited to the kitchen or simply a curious child.¹⁰

Rather than continue to predicate liability on the status of the entrant, we have decided to join the modern trend¹¹ and to apply ordinary principles of negligence to govern a landowner's conduct: A landowner must act as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.¹²

II.

Almost fifteen years ago, the United States Supreme Court commented on the decreasing viability of the common law approach to landowner liability in a case dealing with a shipowner's duty to those aboard his vessel. In deciding whether to import into admiralty law the distinction between the duty owed an invitee and a licensee, Mr. Justice Stewart wrote for the Court:

The distinctions which the common law draws between licensee and invitee

469 F.2d 101

were inherited from a culture deeply rooted to the land, a culture which traced many of its standards to a heritage of feudalism

* * * * * *

For the admiralty law at this late date to import such conceptual distinctions would be foreign to its traditions of simplicity and practicality. . . . Such appears particularly . . Such appears particularly unwarranted when it is remembered that they originated under a legal system in which status depended almost entirely upon the nature of the individual\'s estate with respect to real property, a legal system in that respect entirely alien to the law of the sea.¹³

We believe that the common law classifications are now equally alien to modern tort law, primarily because they establish immunities from liability which no longer comport with accepted values and common experience.¹⁴ Perhaps the protection afforded to landowners by these rules was once perceived as necessary in view of the sparseness of land settlements, and the inability of owners to inspect or maintain distant holdings. The prestige and dominance of the landowning class in the nineteenth century contributed to the common law's emphasis on the economic and social importance of free use and exploitation of land over and above the personal safety of those who qualified as trespassers or licensees.¹⁵

Today, the preeminence of land over life is no longer accepted. Human safety may be more important than a landowner's unrestricted freedom. "A man's life or limb does not become less worthy of protection by the law nor a loss less worthy of compensation under the law because he has come upon the land of another without permission or with permission but without a business purpose."¹⁶

This realignment of values is being recognized in all of tort law. There is a general trend away from immunities conferred on certain classes by reason of their technical status.¹⁷ The law of products' liability has become a field of strict liability,¹⁸ and there is continual movement away from fault as the governing principle for allocation of losses, in favor of enterprise liability or the distribution of losses over a larger segment of society through insurance.¹⁹ There is no sound reason to immunize landowners from the community's perception of values.²⁰

We do not believe, as the concurrence suggests, that the problem of allocating

469 F.2d 102

the costs and risks of human injury is a simple one. Nor do we believe that one value—human safety—should be advanced above all others. We recognize that the allocation of costs requires the resolution of a complex equation, one for which society has not as yet provided a computer. Rather, for centuries the costs of personal negligence have been allocated by a jury according to the standard of reasonable care under all the circumstances

This court has frequently recognized that questions which involve moral and empirical judgments are best handled by representatives of the community as a whole,²¹ specifically in cases involving landowner responsibilities to children of tender years.²² Therefore, in the absence of legislative action to the contrary, we believe that the most effective way to achieve an allocation of the costs of human injury which is acceptable to the community is to allow the jury to function under the standard of "reasonable care under all the circumstances."

If immunities from liability are to exist, they should be based on consideration of factors which are relevant in modern society and unrelated to classifications of trespassers, licensees and invitees. In the words of the California Supreme Court, the jury should consider "the closeness of the connection between the injury and the...