MARITTA J. YOUNG, APPELLANT, V. ERIKSEN CONSTRUCTION COMPANY AND FIRST NATIONAL BANK OF YORK, APPELLEES.
No. S-94-880.
Supreme Court of Nebraska
September 27, 1996.
553 N.W.2d 143
Accordingly, we hold that the Intercessors has demonstrated the existence of a substantial change of circumstances which warrants modification of the injunction. The use of parcel A as it stands today qualifies as that of a church or as a use incidental thereto within the meaning of the restrictive covenants at issue. Thus, the Intercessors is no longer in violation of the restrictive covenants. Therefore, the order of the district court denying the motion to modify the injunction is reversed, and this matter is remanded with directions to vacate the injunction previously imposed therein.
REVERSED AND REMANDED WITH DIRECTIONS.
Robert W. Wagoner for appellee First National Bank of York.
Jeanelle R. Robson and Douglas J. Peterson, of Knudsen, Berkheimer, Richardson & Endacott, for appellee Eriksen Construction Company.
WHITE, C.J., CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.
GERRARD, J.
The district court granted summary judgment in favor of defendants-appellees Eriksen Construction Company (Eriksen) and First National Bank of York and dismissed plaintiff-appellant Maritta J. Young‘s premises liability action. The district court found Young to be a licensee and also found that neither defendant breached the applicable duty owed to a licensee such as Young. Young filed a motion for new trial, and the motion was overruled. Young appeals. Concluding that no question of material fact exists, we now affirm the judgment of the district court.
FACTUAL BACKGROUND
On April 3, 1992, at approximately 1 a.m., Young concluded her shift at the Chances “R” Restaurant in York,
At this time, First National Bank had entered into a contract with Eriksen for certain renovations to its facility. Eriksen utilized a portion of the bank‘s parking lot for a staging area. In this area, Eriksen stored construction materials and equipment. While traversing the parking lot with Schmoker, Young fell when she tripped over the tines of a forklift owned by Eriksen and stored in the staging area. Both Young and Schmoker testified that they saw the body of the forklift, but not the actual tines protruding from the forklift. Young sustained a broken left wrist and a contusion to her right wrist as a result of the fall.
Young filed a negligence action against Eriksen and First National Bank, in which she alleged that both defendants failed to provide sufficient lighting or adequate warning of the dangers presented by the construction equipment. The defendants answered, denying any negligence on their part and claiming that Young was contributorily negligent for her failure to use proper and ordinary care.
Both defendants filed motions for summary judgment, which, after a hearing, were sustained. In its order, the district court found Young to be a licensee as a matter of law and also found that there was no evidence either defendant acted willfully or wantonly or failed to warn Young of a hidden danger known to it.
SCOPE OF REVIEW
Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any mate-
ASSIGNMENTS OF ERROR
Young assigns that the district court erred in granting the defendants’ motions for summary judgment because there exist genuine issues of material fact as to which defendant was in control of the parking lot at the time of the accident, whether there were adequate warning devices in place, and whether Young was a business invitee. In addition, Young asserts that even if as a matter of law she is merely a licensee, the defendants breached their duty to warn her of a hidden danger.
ANALYSIS
We begin our analysis by noting that Heins v. Webster County, ante p. 750, 552 N.W.2d 51 (1996), abrogated the classifications of invitee and licensee in favor of a standard of reasonable care for all those lawfully on the premises of another. However, our rule in Heins is prospective in application and thus without effect in the instant case.
Status as Licensee.
The district court found, as a matter of law, that Young was a licensee. A licensee is a person who is privileged to enter or remain upon the premises of another by virtue of the possessor‘s express or implied consent, but who is not a business visitor. McIntosh v. Omaha Public Schools, 249 Neb. 529, 544 N.W.2d 502 (1996); Blackbird v. SDB Investments, 249 Neb. 13, 541 N.W.2d 25 (1995). An invitee, on the other hand, is a person who goes on the premises of another in answer to the express or implied invitation of the owner or occupant on the
The distinction between licensees and invitees rests on the purpose for which the invitation was extended. If it is an invitation for the personal pleasure, convenience, or benefit of the person enjoying the privilege, the person receiving it is a licensee. But if the invitation relates to the business of the one who gives it or for the mutual advantage of a business nature for both parties, the party receiving the invitation is an invitee. Palmtag v. Gartner Constr. Co., supra. See, also, McIntosh v. Omaha Public Schools, supra.
Viewing the evidence in a light most favorable to Young and giving her the benefit of all reasonable inferences, we conclude that the district court did not err in finding, as a matter of law, that Young was a licensee. The record reveals that First National Bank explicitly limited the use of its parking lot to its customers during business hours. There is no evidence in the record that the bank closed or limited the use of its parking lot in any manner outside of the bank‘s business hours. Instead, Schmoker testified that he always parked in the bank‘s parking lot, that he was never told not to park in the lot, and that other employees of the Chances “R” Restaurant likewise parked in the bank‘s lot. Thus, at the very least, there was an implied invitation for persons such as Young to use the bank‘s parking lot after the bank‘s business hours.
However, consent that a person may be on another‘s premises does not by itself make such person an invitee. The evidence in the instant case allows only one conclusion, that persons such as Young and Schmoker were on the bank‘s premises solely for their own benefit and convenience. Schmoker parked in the bank‘s parking lot for his benefit. Young accompanied Schmoker to his car for her benefit. There was no evidence indicating that the use of the bank‘s parking lot by Schmoker effected a benefit to the bank or, for that matter, a mutual advantage of a business nature. Accordingly, the district court did not err in concluding, as a matter of law, that Young‘s status in this matter was that of a licensee.
An owner or occupant of a premises owes only the duty to refrain from injuring a licensee by willful or wanton negligence or designed injury, or to warn him or her as a licensee of a hidden danger or peril known to the owner or occupant but unknown or unobservable by the licensee, who is required to exercise ordinary care. Blackbird v. SDB Investments, supra.
“In order for an action to be willful or wanton, the evidence must prove that a defendant had actual knowledge that a danger existed and that the defendant intentionally failed to act to prevent harm which was reasonably likely to result. . . .
“To constitute willful negligence the act done or omitted must be intended or must involve such reckless disregard of security and right as to imply bad faith. Wanton negligence has been said to be doing or failing to do an act with reckless indifference to the consequences and with consciousness that the act or omission would probably cause serious injury.”
(Emphasis in original.) Blackbird v. SDB Investments, 249 Neb. 13, 19, 541 N.W.2d 25, 30 (1995) (quoting Guenther v. Allgire, 228 Neb. 425, 422 N.W.2d 782 (1988)).
Construing the evidence in a light most favorable to Young, we conclude the district court did not err in finding that the defendants did not breach their applicable duty of care. The condition of the bank‘s parking lot with respect to Eriksen‘s staging area did not involve such reckless disregard of security and right as to imply bad faith, nor could Eriksen‘s use of the area give rise to a finding of reckless indifference to the consequences and with consciousness that its act or omission would probably cause serious injury.
The bank‘s parking lot was sufficiently illuminated in the staging area so that Young could see a concrete island, a trailer, Schmoker‘s car, and the body of the forklift at issue. Nothing in the record indicates that the tines of the forklift were concealed or that Young‘s view was obstructed in any fashion. Although the defendants were required to warn a licensee such as Young of hazards known to them, this duty
As a result, we conclude that the district court did not err in granting summary judgment for the defendants on Young‘s allegations of failing to provide sufficient lighting or adequate warning of the dangers presented by the construction equipment in the bank‘s parking lot.
CONCLUSION
There is no genuine issue of material fact (1) that Young was a licensee, since her presence on the bank‘s premises was to her benefit alone, and (2) that neither defendant acted with willful or wanton negligence toward a licensee such as Young based on the evidence in the instant case. Accordingly, we affirm the district court‘s order granting the defendants’ motions for summary judgment.
AFFIRMED.
FAHRNBRUCH, J., concurring in the result.
I concur in the result, but reiterate the views stated in my dissent in Heins v. Webster County, ante p. 750, 552 N.W.2d 51 (1996), that the distinction between an invitee and licensee should not be abolished.
CAPORALE, J., joins in this concurrence.