Stevens v. Salt Lake County
| Decision Date | 11 December 1970 |
| Docket Number | No. 12022,12022 |
| Citation | 478 P.2d 496,25 Utah 2d 168 |
| Parties | d 168 Christopher J. STEVENS, a minor, by Shirley Stevens, Guardian ad Litem, Plaintiff and Appellant, v. SALT LAKE COUNTY, an entity known as Papanikolas Brothers Enterprises, and Leonard Ray Johnstone, Defendants and Respondents. |
| Court | Utah Supreme Court |
Gerald L. Turner of Turner, Fairbourn & Perkins, Salt Lake City, for plaintiff-appellant.
Harold G. Christensen, Jay E. Jensen, Don J. Hanson, Salt Lake City, for defendants-respondents.
This appeal is from the granting of motions for summary judgment in favor of all three named defendants, Salt Lake County, Papanikolas Borthers Enterprises, and Leonard Ray Johnstone, and dismissing plaintiffs complaint, in which he seeks recovery for injuries suffered in a motor vehicle collision.
On June 9, 1968, plaintiff, a 13-year-old boy, was riding his motorized 'mini-bike' southward along a pathway in a vacant lot owned by defendant Papanikolas in the environs southeast of Salt Lake City. As he emerged through brush and weeds into an unimproved country road known as Spring Lane, the defendant Johnstone was driving westward thereon and the collision occurred which resulted in the injuries to the plaintiff. In this suit plaintiff bases his claim for recovery against each of the three defendants on separate grounds of negligence: Johnstone in the operation of his car; Papanikolas as to the condition of the vacant lot; and Salt Lake County as to the Condition of the road.
The granting of the motions for summary judgment was based upon the pleadings, affidavits and/or depositions filed by the parties.
In his brief plaintiff describes this accident:
The driver of the car and the child who was struck were screened from each other until the boy had actually reached the traveled portion of the highway. As Christopher Stevens emerged from the jungle-like foliage on his mini-bike, he was struck by an automobile driven by Leonard Ray Johnstone and was seriously and grievously injured.
The plaintiff's pleadings also make this statement:
That the growth and accumulation of high weeds, grasses and wild grains obscured the visibility of pedestrians using the subject pathway and motorists traveling the subject highway and makes it impossible to motorists and pedestrians to observe one another until upon the subject highway.
The basis of the plaintiff's claim of negligence against the defendant Johnstone is his failure to see the plaintiff in time and to stop or control his vehicle in order to avoid the collision. He urges application of the principle that the law requires a driver to see things which are apparent, and also holds him responsible for failing to see what in the ordinary care he should have seen. 1 The soundness of that principle of law is not eqestioned, but the difficulty here is that it does not fit the plaintiff's case. This is negatived by the plaintiff's own assertion that it was '* * * impossible for motorists and pedestrians to observe one another * * *' at that place. Accepting that allegation as a fact, and considering it in connection with plaintiff's further statement that he was struck '* * * as (he) emerged from the foliage' impels the conclusion that the defendant Johnstone had no better opportunity than did the plaintiff to see the danger in time to avoid it.
It is urged that because the plaintiff was only 13 years of age he should be held to a lesser degree of care than an adult under similar circumstances. It is true that a child is ordinarily charged with only the degree of care which an ordinary, reasonable and prudent child of the same age would observe. 2 However, we do not see that rule as providing any succor to the plaintiff here. Under the circumstances shown we are not aware that there is any substantial difference between the alertness and caution required of a youth of 13 and that of an adult. This is particularly so when he had taken it upon himself to drive a motorized vehicle upon a public way. 3 Further bearing on this duty of care upon the plaintiff is our statute, sec. 41--6--17(a)(5), U.C.A.1953, which requires that the driver (i. e., any driver) of a motor vehicle about to enter or cross a highway from a private road or driveway shall yield the right of way to vehicles traveling upon the highway.
From what we have said above it is our conclusion that the trial court was justified in his view that there is no basis upon which it could reasonably conclude that the defendant Johnstone was any more at fault, nor that any lack of care on his part was any more the proximate cause of the mishap, than was the conduct of the plaintiff himself; and that the plaintiff's contributory negligence would bar his recovery. 4
In considering the duty of a landowner to persons coming on his property, it is appropriate to point out the distinction between what are termed 'invitees' or 'business visitors' as compared to those who are termed 'licensees.' In order to qualify as the former, one who goes upon the premises of another must do so at the invitation of the owner. This may be expressed, or it may be implied because it is done in connection with the owner's business, or some mutual business of advantage to the owner. With respect to such invitees, the landowner has a comparatively high degree of care to assure their safety. 5 A licensee is one who goes on the land of another without any such invitation. But in order that he not be a mere trespasser, there must be permission from the landowner, 6 or at least an implied permission, which may be inferred from the latter's knowingly allowing repeated use of his land without objection. The latter is the best possible view for the plaintiff's status in this case. In the instance of licensees it is considered that the owner has a somewhat lesser degree of duty than he has to invitees or business visitors. Although he has a duty to exercise reasonable care to avoid injury to such licensees, he generally has no duty to inspect his land to discoverpossible dangers, or to correct natural conditions on his land to guard against dangers to such licensees; and this is particularly true where the facts concerning any possible danger are just as apparent to the third party as to the landowner. 7 The consideration of this principle, in conjunction with what has been said herein about the plaintiff's own contributory negligence, provides justification for the trial court's ruling in favor of the property owner, defendant Papanikolas. 8
Plaintiff's averment as to fault on the part of the County does not stem from any condition upon or within the public roadway itself. Rather it is based upon his contention that weeds and brush growing alongside the roadway so obscured the view of travelers thereon that this constituted a 'defective, unsafe or dangerous condition of the highway,' which it was the duty of the County to remedy, and for which liability was removed by our new Governmental Immunity Act. 9 This statute does not create any liability where none would have theretofore existed. Its sole purpose and effect is to remove sovereign immunity in situations where there would have been liability, but where sovereign immunity formerly prevented recovery. 10
In respect to our analysis of the claim against Salt Lake County, it is appropriate to observe that there is not here presented any such broad problem as to whether there may be some circumstances where a public road is so positioned and/or maintained in relation...
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