Steinmeyer v. McPherson, 38315

• Decision Date: 09 June 1951
• Docket Number: No. 38315,38315
• Citation: 171 Kan. 275,232 P.2d 236
• Parties: STEINMEYER v. McPHERSON et al.
• Court: Kansas Supreme Court

Page 236

232 P.2d 236

171 Kan. 275

STEINMEYER v. McPHERSON et al.

No. 38315.

Supreme Court of Kansas.

June 9, 1951.

Syllabus by the Court.

1. A proprietor or operator of a trade or business is not an absolue insurer of the safety of customers. He is liable for failure to maintain the premises in a reasonably safe condition for the protection of customers unless they know, or should know, of the possessor's activities and of the risk involved therein.

2. In order for latent defects to create liability for injury resulting therefrom such defects must be known to the proprietor or operator of the premises or have existed for such time as to make it his duty to know thereof.

3. A licensee is a person who is privileged to enter or remain upon land by virtue of the possessor's consent, whether given by invitation or permission.

4. Ordinarily the only duty an owner or occupant of premises owes to a mere licensee is the duty to refrain from willfully, intentionally or recklessly injuring him.

5. Absent a motion to make pleaded facts more definite and certain the petition, as to those facts, is entitled to a liberal interpretation when attacked by demurrer. Failure to attack it by such motion does not perform the function of supplying the petition with wholly omitted facts constituting essential elements of a cause of action.

Frank P. Eresch, of Topeka (Peter F. Caldwell, of Topeka, on the briefs), for the appellant.

David H. Fisher, of Topeka (Irwin Snattinger, of Topeka, was with him), for the appellees.

WEDELL, Justice.

The plaintiff appeals from an order sustaining a general demurrer to his amended petition in which he sought to recover damages for personal injuries.

The part of the petition necessary for a review of the ruling reads:

'The plaintiff, Victor Steinmeyer, is a resident of Topeka, Shawnee County, Kansas.

'The defendants, C. M. McPherson and W. B. Nolan, are residents of Topeka, Shawnee County, Kansas, and are, and have been for many years, partners doing business as Kansas Auto Wrecking Company * * *.

'The defendants use and occupy a tract of land at 634 West First Street in carrying on their business as Kansas Auto Wrecking Company in which business they buy and wreck old and used motor vehicles, dismantle them, store various auto parts on the premises and offer them for resale as used auto parts. In connection with said business the defendants keep watch dogs on the said premises to protect their property against thieves and pilferers.

'The plaintiff has been acquainted with the defendants for a number of years and has been a business customer of the Kansas Auto Wrecking Company. During the month of December, 1949, the plaintiff and defendants orally agreed and arranged that plaintiff would permit defendants to keep plaintiff's dog on the premises at 634 West First Street as a watch dog for the protection of defendant's property.

'On the 28th day of December, 1949, the plaintiff entered the premises of the defendants at 634 West First Street, at a time when said premises were open for business. He proceeded along a narrow pathway, lined on either side with various and sundry used auto parts stored on the premises, back to the place where plaintiff's dog was being kept by defendants. Plaintiff picked up a carton or box used as a food box for said dog and started carrying it back along said narrow pathway toward the defendants' business office for the purpose of getting more food for said dog. While walking back along said pathway, plaintiff stepped into a small depression in which there was some ice accumulated, and slipped and fell. In said fall plaintiff's left foot and leg struck some metallic auto parts which were stored along said pathway, and plaintiff's left foot was severely injured including a fracture of the interior malleous and a fracture of the fibula at and just above the ankle joint level; and also a fracture through the posterior-inferior aspect of the tibia.

'After said fall and as a result thereof plaintiff was taken in an ambulance to Vail Stormont Hospital where his left foot and ankle were x-rayed and placed in a cast. He remained at the hospital 5 days and was then removed to his residence where he was confined until the cast was removed about March 24, 1950.

'The injuries suffered by plaintiff were proximately caused by the negligence of the defendants in

'(1) Failing and neglecting to keep the pathway on their property, where plaintiff fell, in reasonably safe condition for the use of their business invitees and others rightfully travelling on said pathway.

'(2) In permitting a depression in said pathway to exist and become coated with ice, without filling up said depression and removing said ice.

'(3) In failing and neglecting to place a warning sign to warn persons using said narrow pathway of the depression covered with ice in said pathway.

'(4) In maintaining a narrow pathway lined with heavy metal used auto parts, so narrow that anyone slipping or losing his balance and falling was in danger of severe personal injuries as a result of striking his body against said used parts.'

Appellant complains of the trial court's ruling contending (1) the petition discloses he was a business invitee, or, in other words a business visitor; that business visitors are of two classes, one class being, for example, where a person enters upon the premises of another to look at goods on display or to make a purchase, and the other class being one where a person enters the premises for a purpose connected with his own business which is directly or indirectly connected with the purpose or business of the possessor of the premises, as, for example, where the former delivers some article of merchandise onto the premises of the latter (Restatement, 2 Torts, § 332); and (2) that the petition did not on its face disclose appellant's...