Turpel v. Sayles

• Decision Date: 03 January 1985
• Docket Number: No. 14914,14914
• Citation: Turpel v. Sayles, 101 Nev. 35, 692 P.2d 1290 (Nev. 1985)
• Parties: Edna TURPEL, Appellant, v. Sandra SAYLES, John Minifee, Robert Shields, Judy Shields, Respondents.
• Court: Nevada Supreme Court

Page 1290

692 P.2d 1290

101 Nev. 35

Edna TURPEL, Appellant, v.Sandra SAYLES, John Minifee, Robert Shields, Judy ShieldsRespondents.

No. 14914.

Supreme Court of Nevada.

Jan. 3, 1985.

Pomeranz, Crockett & Myers, Las Vegas, for appellant.

Harding & Dawson, Abbatangelo & Watkins, Las Vegas, for respondents.

OPINION

PER CURIAM:

Edna Turpel, plaintiff below, alleged that during the night of August 16, 1978, a fire erupted in a condominium unit owned by defendantSandra Sayles.According to Turpel's amended complaint, she was injured when she attempted to warn and rescue the occupants of the condominium.Turpel claimed that her injuries were proximately caused by the negligent failure of defendant Sayles to install a smoke detector device in the condominium, which would have eliminated the need for her to warn the family living in the condominium.

Sayles moved for summary judgment on the sole ground that as to Sayles, Turpel was a mere licensee, to whom Sayles owed no duty of due care under our decision in Fuchs v. Mapes, 74 Nev. 366, 332 P.2d 1002(1958).Sayles did not challenge Turpel's allegation of negligent conduct, or the allegation that such negligence was the proximate cause of her injuries.Turpel, answering Sayles' motion for summary judgment, asserted that the application of the "no duty" rule was counter to the decision announced by this Court in Drummond v. Mid-West Growers, 91 Nev. 698, 542 P.2d 198(1975).In Drummond we held that a plaintiff who has placed himself in a position of danger in order to rescue another may recover from a negligent defendant without application of the ordinary standards for contributory negligence or assumption of the risk, and is "allowed to take actions which in other circumstances might be considered negligent."Id. at 706, 707, 542 P.2d at 204.

The trial court granted summary judgment in favor of Sayles and certified the judgment pursuant to NRCP 54(b).Construing as we must, the pleadings and documentary evidence in the light most favorable to the plaintiff, Mullis v. Nevada National Bank, 98 Nev. 510, 654 P.2d 533(1982), we cannot agree that such a result is consonant with basic principles of tort law, or consistent with our decision in Drummond.

As Justice Cardozo put the matter of duty toward one who goes to the aid of one endangered by a negligent act: "The wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer."Wagner v. International Ry. Co., 232 N.Y. 176, 133 N.E. 437, 437(1921).As another court has held:

Where a defendant's negligent act, of commission or omission, has created a condition or situation which involved urgent and imminent peril and danger, to life or property, of himself or of others, those acts of negligence are also negligence in relationship to all others who, in the exercise of ordinary care for their own safety under the circumstances, short of rashness and recklessness, may attempt, successfully or otherwise, to rescue such endangered life or property, by any means reasonably appropriate to the purpose....

Walker Hauling Company v. Johnson, 110 Ga.App. 620, 139 S.E.2d 496, 499(1964).See alsoNeff v. Woodmen of World Life Insurance Society, 87 N.M. 68, 529 P.2d 294(N.M.App.), cert. denied, 87 N.M. 48, 529 P.2d 274(N.M.1974).

In Swift & Company v. Baldwin, 299 S.W.2d 157(Tex.Civ.App.1957)the plaintiff was injured while attempting to secure a sign which the plaintiff feared would fall on school children who patronized the establishment.The owner of the sign claimed that it owed no duty to the plaintiff, predicated on the property law argument that "the highest position that plaintiff could occupy was that of an invitee; [and]plaintiff was charged with notice of the open and obvious dangers."Id. at 160.The court refused to apply the concept on the basis that "[w]e do not think the question of 'invitee' or 'licensee' or 'no duty' is involved in this case.We think the question presented here was whether or not the school children were in a position of peril, and whether or not the defendant acted as a man of ordinary prudence in going to their rescue."Id.

There is no question that under traditional rules governing property owners' liability for negligence, plaintiff has not alleged facts which would entitle her to recover.In Fuchs v. Mapes, supra, we held that before a duty of due care may be imposed toward one coming onto the property for the express benefit of the occupier, "[i]t is essential ... that the visitor enter upon the premises in question under such circumstances as to give him reason to suppose that the place has been made safe to receive him or ... as to create an implied representation to that effect."74 Nev. at 368, 332 P.2d at 1004.Furthermore, the general rule was that once a lessee had taken possession of property, the landlord was not subject to liability, whether to his lessee or others coming onto the land, for physical harm caused by a dangerous condition on the premises, except in certain specific circumstances.See, e.g., Weaver v. Shell Oil Co., 91 Nev. 324, 535 P.2d 787(1975), Seavy v. I.X.L. Laundry Co., 60 Nev. 324, 108 P.2d 853(1941).See generally2 Restatement of Torts2d §§ 355 to 362(1965).However, as other courts have concluded, we are not satisfied that the traditional principles of property law are appropriately applied to analysis of a tort claim in a twentieth century urban residential setting.¹

As the Supreme Judicial Court of Massachusetts has observed, "Common law rules defining a landowner's liability in negligence to people coming onto the land reflected the needs of an agrarian society," in which the "landowner was a petty sovereign within his boundaries," and "[t]he character of his duty to an injured party varied with the party's relationship with the sovereign," whether trespasser, licensee, invitee or tenant.Young v. Garwacki, 380 Mass. 162, 402 N.E.2d 1045, 1047(1980).See alsoClarke v. O'Connor, 435 F.2d 104(D.C.Cir.1970).

The Supreme Court of New Hampshire similarly found that attempts to analyze a tort claim under traditional principles of property law could no longer be justified under all circumstances.Sargent v. Ross, 113 N.H. 388, 308 A.2d 528(1973).Although the parties had framed the issue in terms of "whether the rule of nonliability should prevail or whether the facts of this case can be squeezed into the negligent repair or some other exception to the general rule of landlord immunity,"308 A.2d at 530, the court determined instead that it was "time for the landlord's limited tort immunity to be relegated to the history books where it more properly belongs."Id. at 533.The court held that rather than issues of control, the focus of inquiry regarding a condition claimed to be unsafe from the onset "should have centered upon the unreasonableness [of the condition] and the unreasonableness of failing to take precautionary measures to reduce the danger."Id. at 532."Similarly,"the court found, "the truly pertinent questions involved in determining who should bear responsibility for the loss in this case were clouded by the question of whether the accident was caused by a hidden defect or secret danger," although "[t]he mere fact that a condition is open and obvious ......