SALEVAN V. WILMINGTON PARK, INC

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, 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 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 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 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 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? * * *