Laurens v. Rush
Laurens v. Rush
Opinion of the Court
This case presents the question of the duty owed to a social guest of an owner or occupier of land—a difficult problem in semantics. While a rose is a rose, the invited are not always invitees. “ ‘Invitation’ is today a much discredited word, if only because a private social guest is invited, and yet is not in the legal sense an ‘invitee.’ ” Prosser, Business Visitors and Invitees, 26 Minn.- L. Rev. 573, 585.
“If plaintiff is a social guest in defendant’s home, the great weight of Anglo-American authority classifies him as a bare licensee, even though he was expressly invited. [Ann. 25 ALR2d 598.] This classification is often invoked to deny the host’s liability for harm caused by a concealed danger that he did not know of, but which would have been discoverable by inspection.
. . . Such a limitation of duty probably conforms to people’s reasonable expectations in the ordinary host-guest situation. If the host is the kind of person who does not inspect and maintain his property on his own account, the guest scarcely expects an exception to be made on the occasion of his visit. In this country, moreover, where most social contact is among people who are on a similar economic footing, the host is usually in no better position than the guest to absorb or distribute the loss.” 2 Harper & James, The Law of Torts 1477, § 27.11. “He does not come as a member of the public upon premises held open to the public for that purpose, and he does not enter for a purpose directly or indirectly connected with business dealings with
In our opinion this case is controlled by Stanton v. Grubb, 114 Ga. App. 350 (2) (151 SE2d 237) which held: “The legal status of Mrs. Stanton as an invited social visitor in the home of the defendant was that of a licensee and not an invitee, no special mutuality of interest being alleged (Hall v. Capps, 52 Ga. App. 150 (3, 4) (182 SE 625); Martin v. Henson, 95 Ga. App. 715 (99 SE2d 251); Campbell v. Eubanks, 107 Ga. App. 527 (130 SE2d 832)), and since the petitions do not show that the defendant breached any legal duty which she owed to her in that capacity under Code § 105-402, the trial court did not err in dismissing the petitions on oral motions of the defendant.”
The test of “mutuality of interest” under Code § 105-402 is generally used in reference to a business in which the occupant is engaged or which he permits to be carried on there; it hhs no application in regard to a mere social guest. Hall v. Capps, 52 Ga. App. 150, supra. To hold otherwise would be to say that while a driver of an automobile owes no duty of ordinary care to a social guest as to active negligence, an owner or occupier of land owes a duty of ordinary care to a social guest as to static negligence. In our opinion, that won’t wash.
A licensee cannot recover by showing that the defendant was merely negligent, but must show that the defendant wilfully and wantonly injured her.
The trial court did not err in sustaining the defendant’s, renewed general demurrer to the petition as amended.
Judgment affirmed.
Concurring in Part
concurring specially in the judgment and dissenting from the ruling that the guest in this case was a mere licensee.
Mrs. Dorothy F. Laurens brought an action against Mrs. Louise D. Rush for damages for personal injuries sustained in a fall on the defendant’s steps caused by the defendant’s alleged negligence. The petition, as finally amended, alleged substantially as follows: At approximately 7:30 p.m. on October 24, 1962, the plaintiff entered the defendant’s residence at her invitation to play a bridge game. Adjoining the front door and extending approximately two-thirds of the distance across the front of the house is an approximately 14-foot wide porch, at one end of which were situated 3 or 4 steps from the porch to the ground. An electric light next to the door lighted the porch, but was so situated that it did not provide adequate lighting upon the steps, but cast shadows upon the steps from the top to the bottom, creating an illusory effect as to the dimensions and location of the steps. Anyone attempting to leave the house by way of the front door must necessarily come directly between the light and the steps, causing additional shadows upon the steps which must be descended. There was provided no handrail or banister. Upon leaving defendant’s home at approximately 10:30 or 11 p.m., the plaintiff became deceived and confused as to the exact location and dimensions of the steps because of the aforesaid illusory effect and fell down the steps, causing her alleged injuries. The defendant had actual knowledge of all of the alleged conditions and knew, or in the exercise of ordinary care should have known, them to be dangerous. This was the plaintiff’s first visit to the defendant’s premises and the illusory effect was not noticeable to her as she ascended the steps. The defendant failed to warn her of the existence of the alleged dangerous condition. The defendant’s alleged negligence was, generally, in failing to adequately light the steps, provide a handrail or banister and warn the plaintiff of the illusory effect created by the inadequate lighting.
The plaintiff appeals from the judgment of the trial court sustaining the defendant’s renewed general demurrer to the petition as amended.
The petition, properly construed, shows that the plaintiff had ascended the steps on which she fell just 3 hours prior to her fall, giving her the opportunity to observe the number, size, location and condition of the steps, including the fact that there was no handrail or banister. It also shows that the plaintiff could see, as she commenced descending the steps, that they were either partially or completely obscured by shadows. Under the older cases cited hereinabove, the plaintiff would be held to have assumed the risks inherent in the alleged situation.
Even if it be assumed that the plaintiff was not negligent, however, or that the question of her negligence would be for a jury to determine, the petition fails to allege a cause of action against the defendant homeowner. “Before a recovery is authorized for the plaintiff in an action against an owner and occupier of land for injuries occasioned by the plaintiff while an invitee on such premises it must be shown that the conditions allegedly causing the injuries were less safe than those provided by ordinarily prudent owners and occupiers of land for their invitees. See Pettit v. Stiles Hotel Co., 97 Ga. App. 137 (102 SE2d 693), and citations.” Brand v. Pope, 103 Ga. App. 489,
2. I do not agree that the guest in this case was a mere licensee. ' In the first place, the host derives as much benefit as the guest, if not more, from the visit of the guest to play a social game of bridge. We can take judicial notice of the facts of life. If I am right about this, the rule as to host-guest relationship in automobiles, etc., applies to social guests. If the host receives a benefit from the invitation, the rule as to gratuitous guests does not apply.
The court did not err in its judgment sustaining the defendant’s renewed general demurrer to the petition as amended. I therefore concur in the judgment of affirmance.
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