SALEVAN v. WILMINGTON PARK, INC.
Superior Court of Delaware, 1950. 45 Del. (6 Terry) 290, 72 A.2d 239.
WOLCOTT, JUDGE. The plaintiff brings suit for personal injuries received when
struck in the back by a baseball while walking on East Thirtieth Street in the City of
Wilmington, past the ball park of the defendant.
The defendant is the owner of land * * * on which is located the ball park in question.
The business of the defendant is the maintenance and renting of the ball park and its
facilities and has been carried on by the defendant for over eight years. * * *
[l]t appears that in the course of an average ball game, 16 to 18 foul balls come from
inside the park into Thirtieth Street and, of them, an average of 2 or 3 foul balls come
from within the park over the 10-foot fence and into the area along Thirtieth Street
through which the plaintiff was passing at the time of the injury. The manager of the
defendant testified that, on an average, 68 baseball games were played at Wilmington
Park during the baseball season.
The plaintiff does not contend that the defendant is an insurer of persons lawfully
using the highways and sidewalks adjacent to its ball park, but does contend that the
defendant, as a landowner, has the duty to exercise reasonable care in the use of its
land so as to prevent injury to travelers lawfully using the highways adjacent thereto.
The plaintiff contends that the defendant had notice of the passage of baseballs
outside of its park into East Thirtieth Street to the danger of persons using that public
street, and that the failure of the defendant to take reasonable precautions to safeguard
the public was negligence. * * *
It is clear that the public has a right to the free and unmolested use of the public
highways, and that abutting landowners may not so use their land as to interfere with
the rights of persons lawfully using the highways. * * *
The inherent nature of the game of baseball * * * is such as to require the landowner
to take reasonable precautions for the protection of the traveling public. What
precautions are reasonable must depend upon the facts and circumstances of the
particular case. Only those precautions are required which the inherent nature of the
game and its past history in the particular location make necessary for the protection
of a person lawfully using the highways. * * *
While the defendant has shown that consideration was given by it to the protection of
the public at the time the park was first built, the fact remains that despite the
precautions taken, baseballs went out of its park into the public highway and that the
defendant either knew that baseballs went out of its park or, under the circumstances,
should have known. The evidence is not seriously contradicted that baseballs went out
of the park into Thirtieth Street within the area through which '"he plaintiff was
passing at the time of her injury two or three times in each game played in the
defendant's park.
Under the circumstances, it seems clear to me that while the defendant took
precautions to protect people passing along Thirtieth Street, those precautions were
insufficient. It further seems clear that the defendant knew, or should have known,
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that the precautions taken initially were insufficient to protect the public engaged in
its lawful right, that is, using the highways. This circumstance puts the case at bar
squarely within the rule I have drawn from the reported decisions, and if this were a
jury trial, would be sufficient to submit the case to the jury and would compel, in my
opinion, the jury to return a verdict for the plaintiff. Accordingly, my conclusion is
that judgment should be entered for the plaintiff.
Judgment being entered for the plaintiff, it remains to determine in what amount that
judgment should be. Under the circumstances, I believe the sum of $2500.00 will
adequately compensate the plaintiff for the injuries received as a result of the
negligence of the defendant.
SHEEHAN v. ST. PAUL & DULUTH RY. CO. United States Circuit Court of
Appeals, Seventh Circuit, 1896. 76 Fed. 201.
[Action for damages for personal injury. While plaintiff was walking on defendant's
railroad track, his foot slipped and became caught between the rail and a cattle guard.
He was unable to extricate his shoe, or to get at it to untie it. Defendant's train
approached, and ran over his foot. Defendant's train crew did not see him until the
train was almost upon him, and it was too late to stop it. The trial court directed a
verdict for defendant, on the ground that "upon the undisputed facts of the case, this
injury did not occur through any wrongful action upon the part of the defendant."
Plaintiff appeals.]
SEAMAN, DISTRICT JUDGE. * * * The plaintiff, at the time of his injury, was
neither in the relation of passenger nor of one in a public G'Ossing or place in which
the public were licensed to travel, but, upon the undisputed facts, was a mere intruder
on the tracks of the defendant,-technically, a trespasser; and this record excludes any
of the elements of implied license or invitation to such use which have given rise to
much discussion and diversity of views in the courts. Therefore the inquiry is here
squarely presented: What is the duty which a railway company owes to a trespasser
on its tracks, and how and when does the duty arise? The decisions upon this subject
uniformly recognize that the trespasser cannot be treated as an outlaw; and, at the
least, that, if wantonly injured in the operation of the railroad, the company is
answerable in damages. Clearly, then, an obligation is placed upon the company to
exercise some degree of care when the danger becomes apparent. Is it, however,
bound to foresee or assume that rational beings will thus enter as trespassers in a place
of danger, and to exercise in the running of its trains the constant vigilance in view of
that probability which is imposed for public crossings? There are cases which would
seem to hold this strict requirement [cc]; but by the great preponderance of authority,
in this country, and in England, the more reasonable doctrine is pronounced, in effect,
as follows: That the railroad company has the right to a free track in such places; that
it is not bound to any act or service in anticipation of trespassers thereon; and that the
trespasser who ventures to enter upon a track for any purpose of his own assumes all
risks of the conditions which may be found there, including the operation of engines
and cars. * * *
The well-established and just rule which holds the railroad company to the exercise of
constant and strict care against injury through its means is applicable only to the
relation on which it is founded, of an existing duty or obligation. This active or
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positive duty arises in favor of the public at a street crossing or other place at which it
is presumable that persons or teams may be met. It is not material, so far as concerns
this inquiry, whether the place is one for which a lawful right of passage exists, as it is
the fact of notice to the company, arising out of its existence and the probability of its
use, which imposes the positive duty to exercise care; the requirement of an extreme
degree of care being superadded because of the hazards which attend the operations of
the company. The case of a trespasser on the track, in a place not open to travel, is
clearly distinguishable in the absence of this notice to the company. There is no
constructive notice upon which to base the obligation of constant lookout for his
presence there, and no actual notice up to the moment the trainmen have discovered
the fact of his peril. As that peril comes wholly from his unauthorized act and
temerity, the risk, and all positive duty of care for his safety, rests with the trespasser.
The obligation of the company and its operatives is not, then, pre-existing, but arises
at the moment of discovery, and is negative in its nature,-a duty, which is common to
human conduct, to make all reasonable effort to avert injury to others from means
which can be controlled. This is the issue presented here. It excludes all inquiry
respecting the character of the roadbed, cattle guard, locomotive, brake appliances, or
other means of operation, or of the speed or manner of running the train up to the
moment of notice, because no breach of positive duty is involved. It is confined to the
evidence relating to the discovery by the engineer and fireman of the plaintiff's peril,
and to the efforts then made to avert the injury, and, out of that, to ascertain whether,
in any view which may justly be taken, it is shown that these men, or the engineer, in
disregard of the duty which then confronted them, neglected to employ with
reasonable promptness the means at hand for stopping the train. * * *
The court was clearly justified in directing a verdict for the defendant, and the
judgment is affirmed.
BARMORE v. ELMORE Appellate Court of Illinois, Second District, 1980. 83
IlLApp.3d 1056, 403 N.E.2d 1355, 38 IlLDec. 751.
LINDBERG, JUSTICE. Plaintiff, Leon Barmore ("plaintiff'), appeals from an order
of the Circuit Court of Winnebago County directing a verdict in favor of defendants,
Thomas Elmore, Sr., and Esther Elmore, the defendants.
On August 8, 1977, at approximately 5:30 or 6:00 p.m., plaintiff came to the
defendants' home. Both plaintiff and Thomas Elmore, Sr. were officers of a Masonic
Lodge and plaintiffs purpose in making the visit was to discuss lodge business.
During the course of plaintiffs visit, codefendant, Thomas Elmore, Jr., ("Thomas,
Jr."), the Defendants' 47-year old son, entered the living room with a steak knife.
Thomas, Jr. said "You've been talking about me," and advanced toward plaintiff.
Thomas, Sr. tried to restrain his son while plaintiff left the house. However, Thomas,
Jr. was able to get away from his father, and 'he followed plaintiff out of the house
where he stabbed the plaintiff several times in the chest area. Thomas, Sr. followed
his son out of the house and, when he saw that plaintiff had been injured, he
summoned help.
Based on this incident, plaintiff filed suit against [defendants.] [P]laintiffs basic
contention is that defendants, as landowners, were negligent in failing to protect him
from a dangerous condition upon their premises-namely their son who had a history
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of mental illness. The extent of defendants' duty in this regard is based in part on
whether the plaintiff had the status of an invitee or of a licensee at the time he visited
the premises of the defendants.
* * * In order for a person to be classified as an invitee it is sufficient that he go on
the land in furtherance of the owner's business. It is not necessary that the invited
person gain an advantage by his entry on the land. [C] A social guest is considered a
licensee and has been defined as one who enters the premises of the owner by
permission, but for the licensee's own purposes. Therefore, a social guest is a person
who goes on another's property for companionship, diversion, or entertainment. [C]
The duty owed by the owner of premises towards an invitee is greater than that owed
towards a licensee. [C] A social guest as a licensee, generally must take the premises
of his host as he finds them. However, the owner of the premises has a duty to warn
the licensee of any hidden dangers which are unknown to his guest, of which he, the
owner, has knowledge, and to refrain from injuring his guest willfully or wantonly.
[Cc] Towards an invitee, the owner of the premises has a duty to exercise reasonable
care in keeping the premises reasonably safe for use by the invitee. [C] There may be
circumstances by which this duty is extended to include the responsibility to protect
the invitee from criminal attacks by third parties. [C]
Plaintiff asserts that sufficient evidence was presented at trial to establish his status as
an invitee at the time of the incident. Specifically, plaintiff argues that Illinois courts
have recognized that the transaction of business of a fraternal organization carries
with it such a status.
Here, although there is evidence that Thomas, Sr. permitted lodge members to come
to his home to pay their dues, the primary benefit of this service ran not to the
defendant himself, but rather to the fraternal organization of which both parties were
members. In sum, we conclude that plaintiff is best categorized as a licensee-social
guest and thus the only duty owed to the plaintiff by the defendants was to warn him
of hidden dangers unknown to the plaintiff of which the defendants had knowledge.
There is no question that defendants failed to warn plaintiff of the danger that their
son might attack a house guest before the attack was underway. Thus the issue
becomes whether under the facts of this case defendants had a duty to do so. Plaintiff
contends that he presented sufficient evidence by which a jury could have concluded
that the defendants had knowledge of previous incidents which would charge them
with a duty to anticipate the criminal acts of their son toward the plaintiff. We
disagree. [The Court summarizes the evidence.]
Verdicts should be directed and judgments n.o.v. entered "only in those cases in
which all of the evidence, when viewed in its aspect most favorable to the opponent,
so overwhelmingly favors movant that no contrary verdict based on that evidence
could ever stand." [C] In our view, the evidence so overwhelmingly established that
the defendants did not know or have reason to know of the possibility that Thomas, Jr.
would commit a criminal act toward plaintiff that no contrary verdict could ever
stand. Although they did know that their son had a history of mental problems and
had been hospitalized several times, and also that approximately ten years before the
present incident their son had been involved in what could be characterized as two or
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three violent incidents, the length of time which had passed would not give them
reason to know that their son would engage in violent behavior in August, 1977. This
conclusion is buttressed by the fact that plaintiff had previous contact with Thomas,
Jr. without incident.
Accordingly, the judgment * * * is affirmed.
CAMPBELL v. WEATHERS
Supreme Court of Kansas, 1941. 153 Kan. 316, III P.2d 72.
[Defendant, as tenant of a part of a building in the city of Wichita, operated a lunch
counter and cigar stand. Plaintiff entered defendant's place of business, loitered in the
front part of the premises for fifteen or twenty minutes without making any purchase,
and then went'to the back part of the building to use the toilet. He stepped into an
open trap door in a dark hallway, and was injured. In his action for negligence, the
trial court sustained defendant's demurrer to the evidence and plaintiff appeals.]
WEDELL, J. * * * The first issue to be determined is the relationship between
plaintiff and the lessee. Was plaintiff a trespasser, a licensee or an invitee? The
answer must be found in the evidence. A part of the answer is contained in the nature
of the business the lessee conducted. It is conceded lessee operated a business which
was open to the public. Lessee's business was that of selling cigars and lunches to the
public. It was conceded in oral argument, although the abstract does not reflect it, that
the lessee also operated a bar for the sale of beer, but that beer was not being sold on
Sunday, the day of the accident. Plaintiff had been a customer of the lessee for a
number of years. He resided in the city of Wichita. He was a switchman for one of the
railroads. He stopped at the lessee's place of business whenever he was in town. He
had used the hallway and toilet on numerous occasions, whenever he was in town,
and had never been advised that the toilet was not intended for public use.
That the public had a general invitation to be or to become lessee's customers cannot
be doubted. * * * Can we say, as a matter of law, in view of the record in this
particular case, appellant had no implied invitation to use the toilet simply because he
had not made an actual purchase before he was injured? * * *
The evidence of lessee's own employees was that the toilet was not regarded as a
private toilet. * * * In a densely populated business district such a privilege may have
constituted a distinct inducement to bring, not only old customers like appellant, but
prospective customers into lessee's place of business. * * * But we need not rest our
conclusion that appellant was an invitee upon the fact that according to the
unqualified evidence, not only customers but everybody was permitted to use the
toilet.
The writer cannot subscribe to the theory that a regular customer of long standing is
not an invitee to use toilet facilities required by law to be provided by the owner of a
restaurant, simply because the customer had not actually made a purchase on the
particular occasion of his injury, prior to his injury. It would seem doubtful whether
such a doctrine could be applied justly to regular customers of a business which the
law does not specifically require to be supplied with toilet facilities, but which does so
for the convenience or accommodation of its guests. Women do a great deal of
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shopping. They sometimes shop all day in their favorite stores and fail to make a
single purchase. Shall courts say, as a matter of law, they were not invitees of the
business simply because on a particular occasion they had not yet made a purchase?
No business concern would contend that they were not invitees unless perchance an
injury had occurred. Men frequently, during spare moments, step into a place of
business, which they patronize regularly, where drinks, cigars and lunches are sold.
They may not have intended definitely to presently make a purchase. They may,
nevertheless, become interested, for example, in a new brand of cigars on display
which they may purchase then or on some future occasion. Would the owner or
operator of the business contend that they were not invitees? We do not think so.
Then why ~should courts arbitrarily say so, as a matter of law? * * *
Manifestly this does not imply that a trespasser. or a mere licensee who enters the
premises on a personal errand for the advancement of his own interest or benefit is
entitled to the protection due to an invitee. In the case of Kinsman v. Barton & Co.,
141 Wash. 311, 251 P. 885, that court had occasion to determine what constituted an
invitee, and said:
"An invitee is one who is either expressly or impliedly invited onto the premises of
another in connection with the business carried on by that other. * * * If one goes into
a store with a view of then, or at some other time, doing some business with the store,
he is an invitee." * * *
Of course, if it appears that a person had no intention of presently or in the future
becoming a customer he could not be held to be an invitee, as there would be no basis
for any though of mutual benefit. The order sustaining the demurrer of the lessee is
reversed.
WILK v. GEORGES Supreme Court of Oregon, 1973. 267 Or. 19, 514 P.2d 877.
HOWELL, JUSTICE. Plaintiff filed this action for damages for injuries sustained
when she slipped and fell on defendant's premises. A jury returned a verdict for the
defendant, and plaintiff appeals.
The defendant operates a garden supply and nursery business in southeast Portland.
On December 13, 1969, plaintiff and her husband went to defendant's nursery to
purchase a live Christmas tree [and plaintiff slipped and fell on a plank walkway].
Defendant testified that he knew the bare planks were "slippery and dangerous" when
wet, and for that reason he placed the asphalt material on them. Defendant also
testified that he had placed a warning sign by the gate and one on each side of the
building. The signs stated (verbatim):
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"Please watch where you are going. This is a nursery where plants grow. There is four
seasons: summer and winter, cold and hot, rain, icey spots. Flower petals always
falling on the floor, leaves always on the floor.
"We are dealing with nature and we are hoping for the best. We are not responsible
for anyone get hurt on the premises.
"Thank you."
The plaintiff and her husband testified that they did not see the signs. * * * Plaintiffs
primary assignment of error on this appeal is that the court erred in giving the
following instruction:
"If a customer coming on the premises knows of a dangerous condition or if this
condition is obvious, there is no duty on the part of the owner to correct or warn of the
condition unless, despite the fact that the danger is known or obvious, the owner
should anticipate that the dangerous condition will cause physical harm to the
customer."
The plaintiff contends that the instruction was erroneous because it stated that a mere
warning of a dangerous condition would satisfy the defendant's legal obligation to
plaintiff. However, the defendant contends that the instruction is correct because if a
prudent landowner should anticipate that an unreasonably dangerous condition will
cause harm to a customer even though the danger is known or obvious, he may either
(1) correct the condition, or (2) warn the customer and satisfy his duty. * * *
Under the 2 Restatement (Second) 218, Torts § 343A, comment f, if the possessor
should anticipate that the dangerous condition will cause harm to the invitee despite
the latter's knowledge, the possessor's duty of reasonable care may require him "to
warn the invitee, or to take other reasonable steps to protect him * * *." (Emphasis
ours.)
Dean Prosser, in the Law of Torts, discusses situations when a warning mayor may
not be sufficient. He points out that in the usual case there is no obligation to protect
the invitee from dangers known to the invitee because it is expected that the visitor
will protect himself. Under these circumstances reasonable care will require nothing
more than a warning of the danger. However, where the possessor should anticipate
an unreasonable risk of harm to the invitee notwithstanding his knowledge or a
warning, "something more in the way of precaution may be required." Examples are
situations where the invitee's attention may be distracted or conditions such as icy
steps which cannot. be negotiated with reasonable safety. "In all such cases the jury
may find that obviousness, warning or even knowledge is not enough." Prosser, Torts
(4th ed.) 394, 395, § 61. * * *
The jury should have been instructed that if they found that the condition that existed
was unreasonably dangerous-a condition which cannot be encountered with
reasonable safety even if the danger is known and appreciated-the owner of the
premises is obligated to do more than post warning signs; he must take reasonable and
feasible steps to obviate the danger. * * *
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There was evidence in the instant case from which the jury could have found that the
defendant as a reasonable man should have anticipated an unreasonable risk or harm
to plaintiff notwithstanding the posted signs. He placed the asphalt material on most
of the walkways because, as he testified, he knew that the planks were slippery and
dangerous when wet. Both the bare planks and the asphalt cover were green in color,
which could be misleading to one traversing a walkway looking around for a
particular tree or shrub. Under these circumstances slipping and falling by a customer
was easily foreseeable. * *
Reversed and remanded.
KLINE v. 1500 MASSACHUSETTS AVE. APARTMENT CORP.
United States Court of Appeals, District of Columbia Circuit, 1970. 141
U.S.App.D.C. 370, 439 F.2d 477. .
[Plaintiff Sarah B. Kline, a lessee of defendant, sustained serious injuries when she
was criminally assaulted and robbed at approximately 10:15 P.M. while she was in
the common hallway of a large (585-unit) combination office-apartment building.
Although a doorman had been employed in the past, the entrances to the building
were left unguarded at the time plaintiff was assaulted. This procedure was followed
in spite of the fact that defendant lessor had notice of an increasing number of
assaults, larcenies and robberies being perpetrated against the tenants in and from the
common hallways of the building.]
WILKEY, CIRCUIT JUDGE. The appellee apartment corporation states that there is
"only one issue presented for review * * * whether a duty should be placed on a
landlord to take steps to protect tenants from foreseeable criminal acts committed by
third parties". The District Court as a matter of law held that there is no such duty. We
find that there is, and that in the circumstances here the applicable standard of care
was breached. We therefore reverse and remand to the District Court for the
determination of damages for the appellant. * * *
In this jurisdiction, certain duties have been assigned to the landlord because of his
control of common hallways, lobbies, stairwells, etc., used by all tenants in multiple
dwelling units. * * *
While [prior cases have] dealt with a physical defect in the building leading to
plaintiffs injury, the rationale as applied to predictable criminal acts by third parties is
the same. The duty is the landlord's because by his control of the areas of common
use and common danger he is the only party who has the power to make the necessary
repairs or to provide the necessary protection.
As a general rule, a private person does not have a duty to protect another from a
criminal attack by a third person. We recognize that this rule has sometimes in the
past been applied in landlord-tenant law, even by this court. Among the reasons for
the application of this rule to landlords are: judicial reluctance to tamper with the
traditional common law concept of the landlord-tenant relationship; the notion that the
act of a third person in committing an intentional tort or crime is a superseding cause
of the harm to another resulting therefrom; the oftentimes difficult problem of
determining foreseeability of criminal acts; the vagueness of the standard which the
8
landlord must meet; the economic consequences of the imposition of the duty; and
conflict with the public policy allocating the duty of protecting citizens from criminal
acts to the government rather than the private sector.
But the rationale of this very broad general rule falters when it is applied to the
conditions of modern day urban apartment living, particularly in the circumstances of
this case. The rationale of the general rule exonerating a third party from any duty to
protect another from a criminal attack has no applicability to the landlord-tenant
relationship in multiple dwelling houses. The landlord is no insurer of his tenants'
safety, but he certainly is no bystander. And where, as here, the landlord has notice of
repeated criminal assaults and robberies, has notice that these crimes occurred in the
portion of the premises exclusively within his control, has every reason to expect like
crimes to happen again, and has the exclusive power to take preventive action, it does
not seem unfair to place upon the landlord a duty to take those steps which are within
his power to minimize the predictable risk to his tenants. * * *
[I]nnkeepers have been held liable for assaults which have been committed upon their
guests by third parties, if they have breached a duty which is imposed by reason of the
innkeeper-guest relationship. By this duty, the innkeeper is generally bound to
exercise reasonable care to protect the guest from abuse or molestation from third
parties, be they innkeeper's employees, fellow guests, or intruders, if the attack could,
or in the exercise of reasonable care, should have been anticipated.
Liability in the innkeeper-guest relationship is based as a matter of law either upon
the innkeeper's supervision, care, or control of the premises, or by reason of a contract
which some courts have implied from the entrustment by the guest of his personal
comfort and safety to the innkeeper. In the latter analysis, the contract is held to give
the guest the right to expect a standard of treatment at the hands of the innkeeper
which includes an obligation on the part of the latter to exercise reasonable care in
protecting the guest.
Other relationships in which similar duties have been imposed include landownerinvitee, businessman-patron, employer-employee, school district-pupil, hospitalpatient, and carrier-passenger. In all, the theory of liability is essentially the same: that
since the ability of one of the parties to provide for his own protection has been
limited in some way by his submission to the control of the other, a duty should be
imposed upon the one possessing control (and thus the power to act) to take
reasonable precautions to protect the other one from assaults by third parties which, at
least, could reasonably have been anticipated. • • •
As between tenant and landlord, the landlord is the only one in the position to take the
necessary acts of protection required. He is not an insurer, but he is obligated to
minimize the risk to his tenants. Not only as between landlord and tenant is the
landlord best equipped to guard against the predictable risk of intruders, but even as
between landlord and the police power of government, the landlord is in the best
position to take the necessary protective measures. * * *
We * * * hold in this case that the applicable standard of care in providing protection
for the tenant is that standard which this landlord himself was employing in October
1959 when the appellant became a resident on the premises at 1500 Massachusetts
9
Avenue. * * * [We hold that the same relative degree of security should have been
maintained. * * *
Having said this, it would be well to state what is not· said by this decision. We do
not hold that the landlord is by any means an insurer of the safety of his tenants. His
duty is to take those measures of protection which are within his power and capacity
to take, and which can reasonably be expected to mitigate the risk of intruders
assaulting and robbing tenants. The landlord is not expected to provide protection
commonly owed by a municipal police department; but as illustrated in this case, he is
obligated to protect those parts of his premises which are not usually subject to
periodic patrol and inspection by the municipal police. We do not say that every
multiple unit apartment house in the District of Columbia should have those same
measures of protection which 1500 Massachusetts Avenue enjoyed in 1959, nor do
we say that 1500 Massachusetts Avenue should have precisely those same measures
in effect at the present time. Alternative and more up-to-date methods may be equally
or even more effective. * * *
The landlord is entirely justified in passing on the cost of increased protective
measures to his tenants, but the rationale of compelling the landlord to do it in the first
place is that he is the only one who is in a position to take the necessary protective
measures for overall protection of the premises, which he owns in whole and rents in
part to individual
tenants.
Reversed and remanded to the District Court for the determination of damages.
10