Vioen v. Cluff

• Decision Date: 22 September 1966
• Docket Number: No. 37790,37790
• Citation: 69 Wn.2d 306,418 P.2d 430
• Court: Washington Supreme Court
• Parties: Michael T. VIOEN, a Minor, by his Guardian ad litem, Paula J. Vioen, Appellant, v. R. E. CLUFF, a single person, Respondent.

Page 306

69 Wn.2d 306

418 P.2d 430

Michael T. VIOEN, a Minor, by his Guardian ad litem, Paula J. Vioen, Appellant, v. R. E. CLUFF, a single person, Respondent.

No. 37790.

Supreme Court of Washington, Department 2.

Sept. 22, 1966.

Benson & Atwell, Jerome R. Cronk, Seattle, for appellant.

Lycette, Diamond & Sylvester, William J. Millard, Jr., Seattle, for respondent.

DONWORTH, Judge.

This action was instituted by a 2-year-old boy as plaintiff (by his mother as guardian ad litem) against his host for personal injuries sustained while he and his mother were invited guests in his home.

In the complaint, it was alleged that the host, while the plaintiff was within his residence, 'carelessly and negligently caused, permitted, and allowed said minor plaintiff to be injured.' The injuries thus sustained were alleged to be severe and permanent. The prayer was for $150,000 general damages and for such special damages as might be proven at the trial.

The host's answer admitted only that he was in possession of the premises referred to in the complaint and 'that on the date alleged an incident occurred involving the plaintiff.' All other allegations were denied on the ground that the host lacked sufficient information to form a belief as to their truth or falsity. No affirmative defenses were set up in the answer.

The cause was tried before the court, sitting with a jury, solely on the issue of liability. The question of the amount of damages suffered by the minor plaintiff was reserved for a future trial in the event that the host should be found to be liable for the child's injuries.

The only witness who testified at the trial was the child's mother. She testified that, on January 11, 1963, she and her son were invited to respondent's home in Seattle. Previous to this occasion, the mother had been in this home only once for a few minutes at a time when respondent, with a realtor, was inspecting the house as a prospective purchaser. He later did buy the property for his home.

A few days prior to January 11th, respondent telephoned the mother and invited her and her son to come to dinner on that date for a social evening and to have her son play with his children. Respondent had a 7-year-old daughter, and a son who was 2 months older than the plaintiff.

The mother and her son arrived at respondent's house about 7:45 p.m. He admitted them. At that time, his 2 children were playing in the living room, which is on the first floor. The mother, who had brought the dessert for the dinner, took it to the kitchen and returned to the living room. As to what then occurred, the mother testified as follows:

Q. After you returned to the living room where Mr. Cluff and the children were, what did you do then? A. Well, Mr. Cluff suggested that the children go upstairs to play, that his children had been up there prior, and their toys were up there. Q. And their toys were up there? A. Yes. Q. What if anything was said further or done at this suggestion? A. Well, I looked up at the steps and I asked him, 'Are you sure it is all right for the children to go upstairs?' And he assured me that his daughter would be there ans would take care of the children, the seven-year-old daughter. Q. This was while you were standing approximately where? A. It is an entranceway which adjoins a living room. Q. From that position could you see the steps that you are referring to? A. Yes. Q. So when you had this conversation with Mr. Cluff you could see the steps that the children would have used to go upstairs? A. Yes. Q. You knew because you had been there before that those steps led to the upstairs, is that correct? A. Yes. Q. Now, following this conversation with Mr. Cluff what if anything did you do, or what happend? A. Well, I--Mr. Cluff told me that his daughter would be there with the two boys. And I--we went upstairs to the bedroom. They were going to go in a back bedroom. Q. Would you describe the layout as you can recall it of the upstairs after you came to the top of the stairs insofar as you or your child went through it, or was it in that night? A. The stairway enters into the little girl's bedroom, which is right at the top of the steps. Q. Would you describe what was in this bedroom so we have an idea of what you are talking about? A. Just an ordinary bedroom with a bed and a chest of drawers and little girl things in this room. She lived there. Q. It was, as far as you could tell, furnished with normal furniture? A. Yes. Q. Was there a door at the bottom of the stairs? A. No. Q.

Was there a door at the top of the stairs? A. No. Q. Was there a door on the room that this stairway entered into, as you recall it, to the little girl's room? A. I recall no doors. Q. After you and the children went into this first little girl's bedroom, where did you go from there? A. We went through another doorway to the left of this room and went to this back bedroom. Q. To be sure I understand this, did you walk through one room into another room? A. Yes, we did. Q. And was there a door from the little girl's bedroom to this back room that you are talking about? A. I don't recall any at all. Q. What was back in the other room, and what happened there? A. It was a vacant, a small vacant bedroom, and there--the roof is slanted in there, and there is a little storage area which is under this slanted one side of the ceiling, and where apparently there were toys stored. And Mr. Cluff proceeded to bring some toys out for the children. Q. You were present at this time? A. Yes, I was. Q. And did you participate in bringing the toys out? A. No, I didn't bring them out. I recall that there was some dishes for the little girl and--I didn't bring anything out because I didn't know where they were. Q. Now, if I understood your answer, it was no, you did not participate in this at all? A. No. Q. Did Mr. Cluff participate in the activities that you have just described? A. Yes, he brought the toys out for the children. Q. After Mr. Cluff brought the toys out for the children, what if anything did Mr. Cluff do? A. He put his daughter in charge again. He said to her, 'You watch the children, and if they want to come downstairs, you call us.' Q. This is the girl that you told us was how old? A. Seven. Q. Were you present when he told the daughter--A. Yes, I was. Q.--to watch the children, as you have described it? A. Yes. Q. Did you give the girl any instructions? A. No, I don't recall giving her any. Q. After these instructions were given by Mr. Cluff to his daughter, how long did you stay in the play area? A. We left right away after giving the girl the instructions.

Respondent and the mother then went downstairs to the kitchen for the purpose of cooking dinner.

In her testimony, the mother described the stairs in some detail. During her direct examination, two photographs of the stairway were admitted in evidence without objection. One of them was taken from the second floor looking directly down the stairs to the landing and the other was taken from the entrance hall on the first floor looking toward the bottom of the stairs where there were three steps below the landing. This picture also shows a side view of the upper portion of the stairs.

As to the accident in which her son (appellant) was hurt, the mother testified:

Q. Now, what happened? You said you went into the kitchen and you hadn't quite gotten ready to fix the dinner until something happened. What happened? A. Well, I don't know whether Mr. Cluff opened the refrigerator or if we even had time for that, but I heard one thud, one main bang. We knew somebody had fallen down the steps. Q. What if anything did you do then? A. We ran from the kitchen to the--Q. About how long after you had arrived at this home did this occur, this thud? A. Twenty minutes, twenty-five minutes. Q. And the children had been upstairs about how long at the time you heard this thud? A. Five minutes, maybe ten. Q. Had any of the children come downstairs at the time you heard this thud? A. No. Q. Had anyone called you from upstairs to tell you the children wanted to come down? A. No. Q. As you left the area, you and Mr. Cluff, going down, did Mr. Cluff close any doors? A. I don't recall any doors at all. Q. Do you know if he put furniture or anything else at the top of the stairs? A. No. Q. Do you know if he put furniture or in any way blocked the first door from the stairs to his little girl's room? A. No. Q. Do you know if he in any way blocked the door from the little girls' room into the play area? A. No, he didn't. Q. Now, after you heard the thud and ran into the living room what did you see? A. Well, I found my son on the floor right near the stairs, at the bottom. Q. Now, showing you again what has been marked for identification as Plaintiff's Exhibit No. 1, as you see, that is the picture that shows the first three steps before you turn the corner; isn't that correct? A. Yes. Q. Can you tell us, by using that picture, roughly where you found your child? A. I don't know the exact location, but his head was toward the steps. His feet were away. Q. How near the steps--Was he on the main floor or was he up on a platform, or where? A. He was on the main floor. Q. That is the main floor that you see in Exhibit No. 1? A. Yes. Q. And now you say his head was near the steps? A. Yes. Q. And would you place his body directly out from the steps as though you were coming down? A. It was at an angle. Q. An angle between straight out and off to the side, is that correct? A. Yes.

She further testified that, after she and respondent had picked up her son and had calmed him dow, they tried to figure out how the child might have received his injury. It was apparent that he had fallen down the stairs in some manner. They tried to ascertain where he must have hit the stairs but they had no way of knowing. The mother examined the back of the child's head and observed a dent with 'little red splotchy marks and a red line that ran...