Thayer v. Silker

• Citation: 126 N.W.2d 263,267 Minn. 268
• Decision Date: 07 February 1964
• Docket Number: No. 38987,38987
• Parties: Virginia THAYER and Ivan Thayer, Appellants, v. Kenneth C. SILKER, and Esther B. Silker, Respondents.
• Court: Supreme Court of Minnesota (US)

Page 263

126 N.W.2d 263

267 Minn. 268

Virginia THAYER and Ivan Thayer, Appellants, v. Kenneth C. SILKER, and Esther B. Silker, Respondents.

No. 38987.

Supreme Court of Minnesota.

Feb. 7, 1964.

Syllabus by the Court

Where a social guest, without the invitation or knowledge of the property owners, enters a dark, unfinished garage for purposes of her own and falls into an unguarded cistern, she is injured in an area which is not within the limits of her gratuitous license.

Under such circumstances the owners are not liable for failing to warn her of the danger or for neglecting to take measures to protect her against the particular injury she sustained.

Swan, Mattson, Pougiales & Samels, Rochester, for appellants.

Gallagher, Farrish & Zimmerman, and James H. Manahan, Mankato, for respondents.

OTIS, Justice.

Plaintiffs sue for personal injuries and consequential damages resulting from a fall into a cistern located on defendants' premises. From a summary judgment in favor of defendants, based on affidavits and depositions which raise no issues of fact, ¹ plaintiffs appeal.

The property in question consists of a tract of land slightly less than 6 acres in area, located southwest of the intersection of U.S. Highway No. 63 and County Road No. 14, some 5 miles north of the city of Rochester. In the year 1958 the defendants placed on the property the framework of a prefabricated home which they were in the process of completing when the plaintiff Virginia Thayer was injured. The house was located about 80 feet from the road and was reached by a driveway leading to a double garage which was 26 feet by 24 feet in dimensions, located at the south end of the building. Some 12 feet west of the garage and about 8 feet north of its south opening defendants had located a bus which was converted into a home for their use during the period of construction. Although defendants' daughter used one room in the house, it was otherwise unfinished. There was no plumbing or electricity, and sheet rock remained to be hung on the studding.

October 18, 1959, the day of the accident, was a Sunday and plaintiffs had been visiting Mr. Thayer's parents, who indicated an interest in acquiring a piece of real estate in the vicinity of defendants' home. Mr. Thayer and Mrs. Silker were cousins. Having the elder Thayers' inquiries in mind, the plaintiffs, without specific prior invitation, stopped at the defendants' residence between 6:30 and 7:00 in the evening. Although they had often driven by, neither of the Thayers had actually been on the property before. They proceeded up the driveway to a point near the southwest corner of the garage. Mrs. Thayer remained in the car with two young children while her husband walked to the bus to inquire about the availability of the real estate in which his parents had shown an interest. Defendants themselves had no property for sale and were uncertain what real estate the Thayers had in mind.

When Mrs. Silker inquired of Mr. Thayer about his wife and children, he advised her that they were going to stay in the car, Mrs. Thayer's reason being that she was regularly employed, had housework to do when she got home, and didn't wish to prolong the visit by joining her husband.

Mrs. Thayer testified that during the period of approximately 10 minutes when her husband was visiting defendants, she got out of the automobile to relieve herself and for that purpose sought a protected corner of the garage which would not be illuminated by passing vehicles. The garage opening next to which she was parked was approximately 7 by 16 feet in size. It was after sundown and the lighting was such that she could only see large objects. She proceeded to the northwest corner of the garage, stepped over a wall made of concrete block, estimated to be 4 to 8 inches high, and fell into a 10 by 13 foot cistern which was 6 1/2 feet deep. At the time of her fall the garage floor consisted of ordinary dirt. Planking and sheet rock which had previously protected the hole had been removed in anticipation of workmen finishing the cistern the day after the accident. Ordinarily the defendants' daughter's car was parked in front of the cistern, but she had left a few moments before the Thayers arrived.

The trial court held that in this state of the record the defendants were free from negligence and Mrs. Thayer was guilty of contributory negligence as a matter of law. Although the question of contributory negligence is closely connected with that of defendants' negligence, we need not pass on both issues since we agree that the facts do not permit a finding that the defendants were themselves negligent.

The plaintiffs concede that at the time of her injury Mrs. Thayer was a gratuitous licensee. ² This being so, the defendants owed plaintiffs no duty of inspection or affirmative care to make the premises safe for their visit. Prosser, Torts (2 ed.) § 445. The rule which governs our decision is contained in Restatement, Torts, § 342, ³ Comment f:

'* * * A condition, no matter how dangerous to those who come in contact with it, can involve risk to a particular licensee only if he may be expected to encounter it in the exercise of his license. * * * So too, a possessor has no reason to expect the licensee's presence at any point other than that within...