*1
discussion,
error in the
call
because
for no
charge
on
neither
nor
on
predicated
charge
any request
Practice Book
156.
any exceptions.
§
on evidence of which
com-
rulings
relate to the admission as exhibits of three
plains
pano-
accident,
ramic
each
the scene
photographs
made
of two or
to-
three
fitted
up
separate exposures
admitted,
Before each was
there was testi-
gether.
it
what
mony
accurately portrayed
purported
to show. When
the trial court became satisfied
true,
that was
it was
to admit the
proper
photographs,
of the mechanics
accurate
irrespective
Fair
had been
v.
portrayal
produced. Cunningham
Haven
Co.,
W. R.
1047;
43 A.
&
Crowell
Bank,
v. Middletown
122 Conn.
Savings
A.
v.
135 Conn.
Hartford,
Cagianello
474,
There is no error.
In this the other concurred. opinion judges
Estelle Laube Albert Stevenson et al. Inglis J., Jennings, Baldwin,
Brown, C. O’Sullivan, Js. *2 January Argued 1950 decided November whom, brief, on the was Upson, with Warren J. (defendants). the Greene, W. for Kenyon appellants Mc- Finkelstein, L. was Helen L. with whom Alfred Donough, (plaintiff). the appellee this action C. The plaintiff brought Brown, to recover and the latter’s husband against daughter a fall cellar stair- sustained on a by for personal injuries home, been due in the to have way alleged defendants’ for the Judgment their was rendered negligence. defendants and have they ap- both plaintiff against pealed. the as modified summary finding
This court’s determinative us is sufficient to present questions one-family defendants owned a appeal: in- Naugatuck house in where lived with their fant child. A led from kitchen to the stairway cellar. of the upper On January portion condition in a defective and was stairway below at step landing top linoleum, there smooth, with a were covered slippery half of the either was no handrail on side of the upper there was no fixture light flight, light of the front and near the middle stairway, top below nosing edge landing step one-half and one-half broken for a one away space and one-half inches at one and one-fourth one point inches at another. This condition had existed known both the entire been defendants year during *3 half and a had owned the had they property done it. At the the time of remedy plain- nothing fall, tiff’s a the vacuum cleaner stood on one side of and an on the board was loose landing ironing hanging side, wall on the other as the defendants well knew. her in occasional visits with the defendants
Upon invitation, to their the who response standing plaintiff, Plains, York, in lived White New assisted with the household duties of and the care the baby. During visit, a such in the afternoon of early January wife, the defendant in while the asked the yard, plain- tiff cellar down the stairs to and to blanket go get it to her for the had the The used bring baby. plaintiff once, before, stairs but and a half and had no year existence the condition knowledge described above. the defendants knew of Although this condition and that also was not aware plaintiff it, neither of them gave any warning. had no occasion or down desire to the stair- plaintiff go and would not have done so for the way except specific made the defendant wife. Pursuant there- request to, the the door to the cellar and found plaintiff opened that the and the of the stairs could not be landing top illuminated artificial reason of light. Although by such as came door and from light through opened dark, was not
cellar windows entirely stairway her to to enable there was not distinguish enough light on and about the readily. stairway everything felt onto She the landing proceeded carefully her- it, she tried to a handrail. For lack of steady suc- wall, without on the but self hand by putting the vac- in cess, for her hand came contact right board; left with the cleaner, uum and her ironing from neither her firm She then stepped gave support. shoe of her The sole onto the below. landing step thrown break and she struck the nosing stairs, bottom of the to the sustaining violently could of. The defendants serious complained injuries knew of have assumed not reasonably would observe of her faculties a reasonable use described. conditions defective facts, con- its these the court was warranted Upon had neither clusion the defendants sustained risk that of nor contrib- defense assumption de- It further concluded that utory negligence. is held fendants hable to whether she the plaintiff, licensee, as the to have been an invitee or merely *4 found, concede was. facts defendants she Upon be characterized social. rea- her visit can as For only first sons which we will becomes necessary explain, is whether or not the to determine what plaintiff is, invitee, a If she termed, an business visitor. was, the defendants are liable her for breach of a their her as Whether one who such. visits nature defendant’s social its property purpose as from a business is an invitee distinguished purpose and not a mere licensee is a never passed question however, this There court. to be rather appears, unusual in other authority unanimity jurisdictions that such is a a visitor licensee and not gratuitous only a business or visitor invitee.
473 or invited “A business visitor is who is per person enter or remain land in the mitted to on possession connected another for a or directly indirectly purpose Restatement, them.” business between dealings 332. is 2 Torts “A licensee is a who priv person § enter or remain land virtue ileged consent, or whether invitation given possessor’s is 330. "A licensee id. permission.” gratuitous § licensee other than visitor as defined business any 332.” 2 id. is further out com 331. As pointed § § a, 3, 331, ment under licensee” "gratuitous phrase § who, sense, includes "social in a guests persons These into the temporarily adopted family.” possessor’s clear definitions make the fundamental distinction be licensee, tween a business visitor and a gratuitous the comment describes the situation quoted precisely in the instant case. The following authorities serve to illustrate the application above definitions to the factual situations presented our conclusion was a support present plaintiff licensee and not an invitee business gratuitous Gudwin, 147, 149; visitor. Gudwin v. 14 Conn. Sup. 214, 216, 136; Mitchell v. N. H. 60 A. 2d Legarsky, Malstrom, 505, 508, v. 127 N. L. Cosgrave J. 288; 607, 613, v. 194 Minn. 261 N. W. Page Murphy, 443; Butze, 989, 990; v. 26 N. Y. S. 2d v. Bugeja Biggs Bear, 597, 599, 320 Ill. 799; N. E. 2d Comeau App. Comeau, 588; v. 285 Mass. 189 N. E. Green Miller, 173 184, 189, 180 834; v. Wis. N. W. South field cote 247, 1 H. 250, 156 1195; & N. Stanley, Eng. Rep. Pollock, 422; notes, Torts 12 A. L. R. (14th Ed.) p. A. L. R. 38 Am. 117; 65 C. S. § Jur. *5 32e. §
While the rule determinative of the lia- landowner’s to a licensee has been stated varied bility gratuitous terms the different as from the jurisdictions, appears
474 “wilful use of the negligence,” expressions “gross in some of act” and “active wanton negligence” clear above, in this state is cited the rule cases land owner of that “An established. It is true well tiran licensee, more ato owes any ordinarily duty .no safe in a a his he does to to premises trespasser, keep take must licensee or condition because the trespasser of the risk and assumes he finds them as premises v. condition.” out of Hayes their. any danger arising 357, 356, Co., 121 New Conn. Britain Gas Light however, of licensee “When, A. 170. presence known to of another becomes the property owner, him a not to the latter owe to subject duty may McDonnell, 131 Conn. him v. to danger.” Deacy true not where A. 2d 181. This is only which in some defendant activity by plain- engages of The owner tiff may be premises may endangered. licensee, whose also under warn be pres- duty aware, conditions ence he becomes cannot of but which he the owner knows reasonably of or a reasonable the licensee knows assume Ward v. his would observe. use of faculties Avery, McDonnell, 394, 396, A. Conn. Deacy Co., 125 Trust Olderman v. Bridgeport City supra; and cases cited. So we licensee, awas mere have said: “Though defendant, devolved as claimed duty known, to him, her in the store became when presence act care use to avoid ordinary injuring positive a failure of which was equiva- negligence and cases such act.” Ward v. lent of Avery, supra, has cited. What this statement comprehends general in these words: “A been stated more explicitly pos- harm sessor of land is bodily subject a natural or artificial caused licensees gratuitous if, if, but he knows (a) condition thereon only *6 condition and that realizes an unreasonable involves risk to them and has reason to will believe risk, not discover the condition or realize the and (b) invites or them to enter or remain permits upon land, without reasonable care make (i) exercising safe, the condition them of to warn (ii) reasonably the condition and risk therein.” involved Restate- ment, 2 342. Torts § of this to the application pertinent principle
facts found in the that the case leaves no doubt present defendant wife was liable for failure to warn of the condition plaintiff stairway. The defendant condition, wife knew of the as the plain- not, tiff did and was charged knowledge to the if used she the stairs as peril plaintiff requested. the same in the defendant husband is By reasoning, a different Since the had no occa- position. plaintiff sion to use the stairs and would not them have used but for the wife, of the defendant specific request since it does not the defendant husband appear had that use of the stairs any knowledge plain- tiff was or that his wife was his contemplated, agent in he was under no to the making request, as a licensee. gratuitous Our decision in v. Yale University, Guilford is not in conflict with that reached in case, the instant the statement on although 452, “If one comes land of another page invitation, that other’s he is entitled to the protection invitee,” of an broad, is too as is from the rule apparent herein declared. The ratio decidendi in that case was that the were warranted the evidence simply jury that the to the de- concluding plaintiff, response fendant’s invitation, awas business visitor or implied invitee at the time of his decisions, Under our injury. the owner of an automobile is held ato of reason- if him even no care
able toward a riding with guest *7 Con Dickerson v. is involved. business relationship Massa v. Co., 90, 87, see necticut Conn. 118 A. 144, 149, 3 A. inconsist Nastri, 125 2d 839. Conn. Any in the rule and the one between this adopted ency least, technical is, most case in instances at present is An or than automobile rather substantial. guest owner, who is in the immediate dinarily presence threatened full of thus with any charged knowledge ensues, such when him, liability danger, danger the owner act results either from a negligent positive act. failure to its reason of his or from equivalent above, Since, stated “the as we when have presence of another a licensee the guest] upon property [social owner, owe to latter becomes known to may — him a him not to principle duty subject danger” —it is case to to warn rise in this gave in difference evident imposed any more the owner in the two situations is apparent Co., Connecticut than real. fact that Dickerson v. The 397 of is cited at Ward v. Avery, supra, page 396, 502, in which is 155 A. rule support there this conclusion. confirms adopted error,
There is is aside and the case set judgment as on is remanded with direction to render judgment file as modified to accord this with except opinion.
In this concurred. Inglis, opinion Js., Baldwin Uni- v. Yale (dissenting). Guilford Jennings, 128 Conn. con- versity, carefully sidered, and this court unanimously approved holding a social that the visitor was licensee whether question or an fact. circumstances in invitee was one of The the case at in bar different from those were entirely seem to me case but to be governed Guilford same matter is The well summed Sir principle. up Pollock, Frederick his who work on Torts ([14th Ed.] remarked: in common reason should 422) p. “[W]hy invited for the worse be person occupier’s pleasure than off one who is about business both?” concerning accords doubtless holding majority opinion reasons stated but for the weight authority, in the visitor, case I do not see a social at why Guilford least one invitation, an re- should not enjoying express ceive the Prosser, an accorded invitee. See protection Invitees,” “Business Visitors & L. Minn. Rev. 573. in the result is due to the fact My inability agree only *8 that the husband found I shall is not liable. While feel bound in the fu- ruling majority opinion ture, I am, case, as the author of the recent Guilford to dissent. impelled I the result O’Sullivan, (dissenting). agree J. far
in so as it Mrs. Stevenson. imposes upon To the reasons in his expressed by Jennings Justice dissent, concur, in which I I that ma- would add which, me, seems an to jority creating anomaly cannot be sustained illustra- logic. following is tion but one of which to demon- be cited many might strate virtue of the the law now my point. By opinion, to be that a in an is an in- automobile appears guest vitee, so-called, towards whom the must exercise host care, reasonable while the same guest, merely by step- out of the automobile his host’s ping property, loses his status as an invitee and instantly acquires a licensee, a far more limited standard protected by of care than entitled, which he was seconds before, as a in the automobile. passenger of
Regardless purpose may prompt owner should he be to exercise rea- realty, required care sonable towards those who have come his virtue of either his or his property by express implied invited, all so rule should invitation. This apply milkmen, social be whether guests. grocers, sense. with common sound and conforms The rule is. And, mentioned above. It will eliminate the anomaly case, which it is finally, supported Guilford is, I re- to the notwithstanding, contrary protestations now overruled. gret say, Appeals Saporiti Zoning Board
Aldo of the Town of Manchester Inglis J., O’Sullivan, Brown, Baldwin, C. Jennings, Js. *9 January Argued December 1950 decided