Wheeler v. Monadnock Community Hospital

• Decision Date: 31 May 1961
• Citation: 171 A.2d 23,103 N.H. 306
• Parties: Sharon WHEELER, by her mother and next friend, v. MONADNOCK COMMUNITY HOSPITAL. Margaret E. WHEELER v. MONADNOCK COMMUNITY HOSPITAL.
• Court: New Hampshire Supreme Court

Page 23

171 A.2d 23

103 N.H. 306

Sharon WHEELER, by her mother and next friend, v. MONADNOCK COMMUNITY HOSPITAL.

Margaret E. WHEELER v. MONADNOCK COMMUNITY HOSPITAL.

Supreme Court of New Hampshire.

Argued April 4, 1961.

Decided May 31, 1961.

Walter Gentsch, East Jaffrey, McLane, Carleton, Graf, Greene & Brown, and Stanley M. Brown, Manchester, for plaintiffs.

Devine, Millimet & McDonough and John S. Holland, Manchester, for defendant.

KENISON, Chief Justice.

In this jurisdiction it is established doctrine that hospitals and charitable institutions enjoy no immunity from liability for negligence. Welch v. Frisbie Memorial Hospital, 90 N.H. 337, 9 A.2d 761; annotation 25 A.L.R.2d 29. Their duty to trespassers, licensees, and invitees is the same as any other individual or corporation. One of the accepted facts of modern living is that hospitals expect visitors for their patients and that in the normal course of events they may bring their children with them to the hospital subject to such regulations as the hospital may prescribe.

A sick aunt who occupied a room on the first floor of the hospital had asked for the six-year old plaintiff and her eight-year old brother and the parents took them to visit her. By regulation and custom children are not allowed in the rooms of patients but were allowed to 'visit through the window.' The children did visit the aunt in this manner and played on the lawn outside the window where they were told to stay while their parents were inside the hospital. Near a parking lot was a retaining wall seven to nine feet high, a portion of which was unguarded and unprotected by a fence. Children had in the past played in the area and the hospital officials frequently 'warned the children to stay away from the area.' The plaintiff child, who was following her brother in walking on the retaining wall, took two or three steps and fell to the level below.

The evidence justified a finding by the jury that the defendant created and maintained a hazard which was a known dangerous condition not likely to be appreciated by young children in the absence of adequate warning by the hospital. McCaffrey v. Concord Electric Company, 80 N.H. 45, 49, 114 A. 395, 17 A.L.R. 813; James, Tort Liability, 63 Yale L.J. 144, 176; Labore v. Davison Construction Company, 101 N.H. 123, 125, 135 A.2d 591, 64 A.L.R.2d 966. There was no warning to this injured child and the retaining wall from the side from which she approached it had the appearance of a low curb. See Keeton, Personal Injuries Resulting From Open and Obvious Conditions, 100 U. of Pa.L.Rev. 629. No good reason appeared why a part of the retaining wall was unguarded and unprotected particularly in view of the fact that the hospital officials were aware that this area was not safe for children. The defendant's conduct could be found to constitute negligence. Restatement, Torts, s. 342, comment b; Nickerson v. Laconia Hospital Association, 96 N.H. 482, 79 A.2d 5.

The Trial Court correctly instructed the jury that the plaintiff was a gratuitous licensee and not a trespasser. Sandwell v. Elliott Hospital, 92 N.H. 41, 24 A.2d 273; Nickerson v. Laconia Hospital Association, supra. See Restatement, Torts, Second (tentative draft No. 5, 1960) s. 343B. The phrase 'gratuitous licensee' may not be a happy one (Restatement, Torts, s. 331) and it may be eliminated in the future (see Restatement Torts, Second, s. 331, tentative draft No. 5, 1960), but the instructions given were an accurate application of the law as it has developed in this state. See Maxfield v. Maxfield, 102 N.H. 101, 103, 151 A.2d 226; Davis v. Wade Motor Sales, 100 N.H. 12, 14, 117 A.2d 924.

The defendant contends that the Court's charge to the jury on the contributory...