Standifer v. Pate

• Decision Date: 30 August 1973
• Citation: 282 So.2d 261,291 Ala. 434
• Parties: Frank Jason STANDIFER, a minor who sues by his father and next friend, James B. Standifer v. Dorotha PATE. James B. STANDIFER v. Dorotha PATE. SC 183, 184.
• Court: Alabama Supreme Court

Page 261

282 So.2d 261

291 Ala. 434

Frank Jason STANDIFER, a minor who sues by his father and next friend, James B. Standifer v. Dorotha PATE.

James B. STANDIFER v. Dorotha PATE.

SC 183, 184.

Supreme Court of Alabama.

Aug. 30, 1973.

Charles Cleveland, Birmingham, Huel Love and Betty Love, Talladega, for appellants.

Gaines & Herefore, Talladega, J. Carter McFerrin, Birmingham, for appellee.

BLOODWORTH, Justice.

James B. Standifer, father of Frank Jason Standifer, a minor, filed a pro ami suit on behalf of the minor and a separate suit for himself in the Circuit Court of Talladega County, alleging in substance that the defendant permitted the minor plaintiff, then one and one-half years old, to injure himself while in the care and control of the defendant. (Since the complaints are substantially the same, we shall hereafter refer to the complaints in the singular only.)

The original complaint was in two counts. Defendant filed a demurrer thereto which was sustained. Plaintiff amended by adding three additional counts--Counts Three, Four, and Five. Defendant filed additional grounds of demurrer, and this demurrer was also sustained. Plaintiff then took a voluntary nonsuit and gave notice of appeal, assigning as error the trial court's ruling in sustaining defendant's demurrer to the complaint and to each count thereof.

It is defendant's initial contention that this court cannot consider the ruling sustaining demurrers to the original counts of the complaint, citing as authority the cases of Kent v. The Coleman Co., et al., 285 Ala. 288, 231 So.2d 321 (1970) and Whatley v. Alabama Drydock and Ship Building Co., 279 Ala. 403, 186 So.2d 117 (1966). With this contention, we agree and thus limit our review to the questions as to whether Counts Three, Four and Five are subject to the demurrers interposed. After a consideration of these counts, we must conclude that the trial court erred, as will hereinafter appear, and reverse and remand this cause.

COUNT THREE

Count Three raises the question as to whether a volunteer babysitter on her own premises owes a duty of due care in supervising a child under her care and control. Count Three alleges in relevant part that 'defendant undertook to supervise, watch, and care for the plaintiff' at the defendant's residence, that 'defendant negligently failed to use due care in supervising, watching, and caring for the plaintiff, and negligently permitted the plaintiff to pull a skillet of hot grease off a counter onto himself.'

The allegations contained in Count Three are virtually identical with those at issue in Nelson v. Gatlin, 288 Ala. 151, 258 So.2d 730 (1972). In that case, a nine year old cub scout was injured while at the home of the cub scout leader. The child stepped on a tire in the yard at play and sustained a broken ankle. The plaintiff's complaint therein alleged that defendant had undertaken to supervise the activities of the plaintiff, that defendant negligently failed to supervise the activities of the plaintiff, and that plaintiff was injured as a result of the rowdy, boisterous and unsupervised play negligently permitted by defendant. This court, in a per curiam five-to-three decision, held that the boy was a mere licensee and therefore the duty owed him was not to wilfully or wantonly injure him or not to negligently injure him after discovering his peril. The counts were held to fail to state causes of action.

While the allegations in the instant case are almost the same as those found in our recent case of Nelson v. Gatlin, we think that case must be overruled insofar as it may be inconsistent with the holding in the case at bar.

As noted in the dissent of Mr. Justice Harwood in the Nelson case, the gravamen of the count is negligent supervision. The place at which such supervision occurred should not affect the duty owed the plaintiff. The location of the alleged breach of duty is unimportant, whether it occurred on the plaintiff's premises or elsewhere.

We find such reasoning to be persuasive. As stated in Nelson v. Gatlin, the recognized duty owed by an occupier of land in Alabama to a licensee is not to wilfully or wantonly injure him, or not to negligently injure him after discovering him in peril. Autry v. Roebuck Park Baptist Church, 285 Ala. 76, 229 So.2d 469 (1969) and cases cited therein.

While this is a correct statement of the rule, it must be noted that this states only the duty Arising out of and Created by the land occupier-licensee relationship. It in no way abrogates or insulates a land occupier from duties which arise from other relationships between himself and another on his premises. The occurrence of the breach of duty on one's own premises is a mere fortuity.

Count Three in the instant case alleges a breach of duty arising out of a relationship of volunteer babysitter and child. In the recent case of Beasley v. MacDonald Engineering Co., 287 Ala. 189, 249 So.2d 844 (1971), involving gratuitous safety inspection of business premises, this court held that a volunteer is under a duty, once he has acted or assumed the duty, to execute the tasks undertaken with reasonable care.

The defendant argues that Beasley must be read in the context of the business relationship there involved. But, this court has previously held that, where one undertakes a duty requiring skill and care, reasonable care must be exercised in the performance thereof even though there may be no cosideration given therefor. H. H. Parker & Brother v. Hodgson, 172 Ala. 632, 55 So. 818 (1911).

In Parker, supra, the action was for damages resulting from the falling of a wall on plaintiff's property claimed to have been caused by the negligent manner in which the defendant, an adjoining proprietor, made an excavation of his own premises. This court held the trial court erred in sustaining a demurrer to the fourth count of the complaint.

In the opinion, this court, speaking through the elder Mr. Justice Simpson, held:

'It is also a principle, however, that 'When a person undertakes an employment, which requires care and skill, whether for reward or not, a failure to exert the measure of care and skill appropriate to the measure of such employment is negligence for which an action will lie.' 29 Cyc. 425, note 58; Siegrist v. Arnot, 10 Mo.App. 197, 200. It is true that in the case just cited there is the differentiating principle that the traveler committed himself to the care of the owner of the carriage, which raised an obligation to use ordinary care, and, in the cases of persons traveling on free passes by common carrier, the occupation itself raises a duty; but, in cases where no duty to do the act is raised, we understand that, While a volunteer is not responsible for the failure or success of the act done by him, yet if by undertaking to do it, though it be voluntary, he brings about a state of affairs which results in injury that would not have occurred if he had not made the effort at all, he is liable. Accordingly, it is stated that, while an excavator on an adjoining lot is not under any obligation 'to brace, underpin, or otherwise protect the walls of buildings on adjoining lands, to keep them from settling or falling on account of such excavation,' yet, if he 'undertakes to do this, he is liable for failure to use reasonable skill and care in the performance of the work.' 18 Cyc. 550; City of Covington, etc. v. Geyler, etc., 93 Ky. 275, 281, 19 S.W. 741.' (Emphasis added)

The Restatement of Torts 2d, § 324(a) is in accord with this position:

'One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

'(a) his failure to exercise reasonable care increases the risk of such harm, or

'(b) he has undertaken to perform a duty owed by the other to the third person, or

'(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.'

Furthermore, other courts which have considered the question have found a duty of due care on the part of a 'volunteer' babysitter.

In Zalak v. Carroll, 15 N.Y.2d 753, 257 N.Y.S.2d 177, 205 N.E.2d 313 (1965), the New York Court of Appeals, in upholding a judgment against a volunteer babysitter for injuries suffered by an infant in her care, stated:

'* * * Even without compensation, when defendants undertook to control a young child and provide care for her, they became responsible for her injury through their negligence (citations omitted). Thus defendants' duty to use reasonable care to protect the infant was not measured by what their duty would have been to a social guest or a mere licensee. They were required to use reasonable care to protect the infant plaintiff from injury. * * *' (Emphasis added)

In Whitney v. Southern Farm Bureau Casualty Insurance Co., 225 So.2d 30 (La.App., 1969), a...