Smith v. Cedar Rapids Country Club

• Decision Date: 12 November 1963
• Docket Number: No. 50744,50744
• Parties: Lourania SMITH and Lyman G. Smith, Appellees, v. The CEDAR RAPIDS COUNTRY CLUB, Appellant.
• Court: Iowa Supreme Court

Page 557

124 N.W.2d 557

255 Iowa 1199

Lourania SMITH and Lyman G. Smith, Appellees, v. The CEDAR RAPIDS COUNTRY CLUB, Appellant.

No. 50744.

Supreme Court of Iowa.

Nov. 12, 1963.

Rehearing Denied Jan. 14, 1964.

John D. Randall, Cedar Rapids, for appellant.

Barnes, Wadsworth, Elderkin, Locher & Pirnie, Cedar Rapids, for appellees.

LARSON, Justice.

This is an action for personal injuries suffered by plaintiff, Lourania Smith, sustained while attending a luncheon at the defendant Cedar Rapids Country Club on May 7, 1959. The petition alleged that the plaintiff was not a member of and had never been in the Cedar Rapids Country Club prior to the date of injury; that she attended and paid the sum of $2.00 for the luncheon as a member of the Cedar Rapids Woman's Club; that she was directed to the ballroom on a floor which had been prepared as a dance floor, with a particularly hard and slippery surface, improper and dangerous for its use at that time. The petition further alleged that the wax or waxes used thereon were improperly applied and also that the same were not spread evenly and uniformly, but were slippery in some spots and not in others; that she was not warned of the slippery condition of the floor; that she stepped on an unusually and particularly slippery spot and fell, breaking her hip.

Defendant's answer denied the allegations of negligence and, as a matter of affirmative defense, denied that the plaintiff was an invitee, and alleged that the plaintiff assumed the risk of the condition of the floor of the ballroom.

The trial court submitted the case to the jury and advised it that the plaintiff was an invitee and declined to submit to the jury the defendant's contention that the plaintiff had assumed the risk.

The specifications of negligence alleged by plaintiff and submitted by the court were:

'1. In using, upon a wooden floor where plaintiff Lourania Smith was permitted to go, waxes resulting in a particularly hard and slippery surface, improper and dangerous for the use to which the floor was being used at the time Mrs. Smith was permitted to go thereon.

'2. In improperly applying to and maintaining on the floor a wax or waxes with the result that the same were not spread evenly and uniformly on the floor but spread or maintained in such a way as to be extremely slippery in spots and not in others.

'3. In not warning the guests, including Mrs. Smith, of the slippery condition of the floor.'

The court also told the jury: 'Mrs. Smith further alleges that she was herself free from contributory negligence.' There is no issue as to contributory negligence presented in this appeal.

The jury returned a verdict for Mrs. Smith but not for her husband, and from a judgment accordingly defendant appeals. Mrs. Smith will hereafter be referred to as plaintiff.

Defendant assigns ten errors, but regroups them into six in its reply argument. Basically, they may be reduced to three principal contentions, and for the sake of brevity we will consider them as follows: (1) The court erred in holding plaintiff was an invitee at the time of her injury and in so instructing the jury; (2) there was no relevant, competent and substantial evidence of defendant's failure to perform its duty to plaintiff; and (3) there was sufficient improper conduct of plaintiff's counsel to require the court to grant defendant's motions for a mistrial or a new trial in these proceedings.

I. The general definition of an invitee is that he is one who goes to a place of business either by express or implied invitation of the owner or occupant on business of mutual interest to both or in connection with the business of the owner. Holmes v. Gross, 250 Iowa 238, 248, 93 N.W.2d 714, and cases cited. Therein we recognized and approved a statement of the responsibility of an owner in LaSell v. Tri-States Theatre Corp., 233 Iowa 929, at 946, 11 N.W.2d 36, at 45, as follows: 'It is a general rule, recognized without dissent, that an owner or occupant of buildings or premises, who directly or impliedly invites or induces others to enter therein, owes an active, affirmative duty to such persons to use reasonable, ordinary, care to keep such premises in a reasonably safe condition, so as not to unreasonably or unnecessarily expose them to danger.'

To determine plaintiff's status, and thereby the duty owed her by defendant, a brief statement of the undisputed facts should be made. The defendant is a private country club in Cedar Rapids, Iowa, maintaining a clubhouse in which there is a ballroom used both for dining and dancing. While the club's facilities are for members and guests, on occasion certain facilities and services are offered to and used by other groups and members of the general public for such purposes as college dances, wedding receptions, and other club luncheons. In this case the group was the Cedar Rapids Woman's Club. As a member of that group, the plaintiff attended a brunch in the ballroom of the defendant club, which was served pursuant to an arrangement between a committee of the Woman's Club and the defendant's manager whereby the Country Club was to charge $2.00 per person, and actually received $424.00 for serving this brunch to those present on that occasion. Plaintiff paid for her ticket at the time she entered the ballroom on the morning of May 7, 1959. She was then directed into the ballroom where tables were already set up for the luncheon. There can be no doubt under these facts that she was then an invitee or, in other words, she was a business visitor. In Restatement of the Law, Torts, Ch. 13, § 332, it is stated: 'A business visitor is a person who is invited or permitted to enter or remain on land in the possession of another for a purpose directly or indirectly connected with business dealings between them.'

There is no evidence to sustain appellant's contention that she was merely a gratuitous licensee, which is defined in the Restatement, § 331, as 'A gratuitous licensee is any licensee other than a business visitor as defined in § 332.' In Comment (a) thereunder it is stated: '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 § 32, Comments f and g, are business visitors. * * * 3. Social guests who, in a sense, are persons temporarily adopted into the possessor's family.'

On the other hand, under Comment a, § 332, it is stated: 'Business visitors fall into two classes. The first class includes persons who are invited or permitted to come upon the land for a purpose directly or indirectly connected with the business which the possessor conducts thereon, * * *. The second class includes those who come upon the land for a purpose which is connected with their own business which itself is directly or indirectly connected with any purpose, business or otherwise, for which the possessor uses the land. * * * b. In determining whether a particular person is a business visitor of a possessor of land, the important thing is the desire or willingness to receive that person which a reasonable man would understand as expressed by the words or other conduct of the possessor. * * * The nature of the use to which the possessor puts his land is often sufficient to express to the reasonable understanding of the public or classes or members thereof a willingness or unwillingness to receive them.' (Emphasis supplied.)

In the Law of Torts, Hornbook Series, 2nd Ed., by Prosser, it is stated on page 452, Ch. 15, § 78: 'An invitee is a person who is invited or permitted to enter or remain on land for a purpose of the occupier. Some courts require that the business upon which he comes be pecuniary in its nature, or of some economic benefit to the possessor; others require only that it be such that there is an implied representation that care has been exercised to make the land safe for the visitor.

'The possessor is required to exercise reasonable care to warn the invitee, or to make the premises safe for him, as to dangerous conditions or activities of which the possessor knows, or those which he could discover with reasonable care. The obligation exists only while the visitor is upon the part of the premises to which his invitation extends.' Also see Harper on Torts, pp. 225-226, § 97, and on the limitation of the invitation, see Steinberg v. Irwin Operating Co. (Fla.1956), 90 So.2d 460, 58 A.L.R.2d 1198.

The trial court instructed the jury that 'Under the undisputed evidence * * * the plaintiff * * * was an invitee on the premises of the defendant at the time of her injury on May 7, 1959' and that 'The owner of a building who directly or by implication invites or induces others to enter upon his premises owes to such persons a duty to have his premises in a reasonably safe condition and to give warning of latent or concealed perils.'

The evidence is undisputed that, as plaintiff was directly proceeding toward the tables set up by defendant for the luncheon, she suddenly fell and received serious and permanent injuries.

It matters not that the arrangements for this luncheon were made by her club's committee or that they requested the ballroom for the meal. Plaintiff was a member of a group or class invited or permitted to use those facilities for this brunch. Furthermore, that defendant had a business interest therein cannot be doubted. Since plaintiff did not stray from the facilities included in the invitation, she was as a matter of law an invitee of defendant at the time and place of her fall.

Defendant cites one case it believes is authority for the proposition that in serving the Woman's Club it had no right to...