Opinion
No. 3783.
Decided March 1, 1949.
One who makes use of the premises of another for the sole benefit of the user is a gratuitous licensee toward whom only a limited duty of care is owed to warn of dangers actually known to such owner and not open to ordinary observation by the user.
CASE, for negligence in maintaining an archway or tunnel under defendant's building in an icy condition as a result of which the plaintiff slipped and suffered personal injuries. Trial by jury, after a view, with a verdict for the plaintiff. Transferred by Leahy, J., upon defendant's exceptions to the denial of its motions for a nonsuit and for a directed verdict, and for a judgment for the defendant notwithstanding the verdict.
The plaintiff on February 13, 1946 was crossing the premises of the defendant while on her way to work at the factory of the B C Shoe Company. The defendant's building was located on the east side of Commercial Street and the B C Shoe Company, employer of the plaintiff, was located on the west side of Commercial Street. The plaintiff slipped on ice inside the archway under the defendant's building. The archway was opposite a right of way and entrance which was conveyed to the defendant in these words: ". . . the use in common with others of the right of way over the team bridge opposite West Central Street; the Grantee to contribute its fair share of the expense of maintaining and repairing the highway bridge according to its use thereof." The conveyance to the defendant was also subject to three easements in favor of (1) an electric utility (2) the grantor to maintain and repair "its water, steam, sewer, electric, telephone and air lines now located in said premises" and (3) the city of Manchester to maintain and repair city water mains. A plan attached to the deed showed dotted lines extending the entrance through the defendant's building.
There was no evidence that the use of the entrance and archway by the plaintiff and several hundred other workers daily had ripened into a prescriptive way or had been dedicated as a public way. The Court ruled that the plaintiff was not an invitee of the defendant but that she was a member of a class of people who could rightfully use the entrance and archway in going to and from various plants located within the area of the Amoskeag Mill yard of the grantor, Amoskeag Industries, Inc.
Other facts appear in the opinion.
Maurice A. Broderick and James Simon (Mr. Simon orally), for the plaintiff.
Wyman, Starr, Booth, Wadleigh Langdell (Mr. Starr, Jr. orally), for the defendant.
If the plaintiff was an invitee, the defendant was under a duty to use due care to have the place safe. Frear v. Company, 83 N.H. 64, 68. If the plaintiff was a gratuitous licensee, the defendant "owed [her] only a limited duty of care." Mitchell v. Legarsky, ante, 214, 216. "Use of the premises for one's own personal benefit is what makes the user a licensee; while if the premises are used for the common interest and mutual advantage of both the user and the owner, by invitation expressed or implied, the user then becomes an invitee." Hashim v. Chimiklis, 91 N.H. 456, 457. The plaintiff's use of the entrance and archway was for her benefit and not of any advantage to the defendant. She was not a customer or employee of the defendant or any of its tenants nor did she have business relations with them from which an invitation could be implied for their common interest or mutual advantage. Menard v. Cashman, 94 N.H. 428. The evidence supports the ruling of the Trial Court that she was not an invitee. Upon the evidence the plaintiff was a gratuitous licensee.
The plaintiff testified that she was aware of the icy conditions at the place of the accident and elsewhere and that this condition had existed at the place she slipped for three or four days previously. She also testified as to the precautions taken to avoid falling. "I walked very slowly and balanced myself and took my time so to be careful not to fall." Factually plaintiff's position is similar to Sandwell v. Elliott Hospital, 92 N.H. 41, 44, where it was said: "She stands no better than a `gratuitous licensee,' to whom no duty is owed, as to the condition of the premises, except to warn of dangers actually known by the defendant and not open to ordinary observation by the plaintiff. Hashim v. Chimiklis, 91 N.H. 456; Locke v. Payne, 81 N.H. 266. Since the icy condition and its attendant dangers were fully observable and fully appreciated by the plaintiff, no duty was imposed on the defendant." The dangerous condition in the present case was not one likely to be undiscovered by the licensee (Restatement, Torts, s. 342) so that liability could be imposed on the defendant. Mitchell v. Legarsky, ante, 214, 216. It is believed that our cases represent the prevailing rule. Prosser, Torts, p. 632: Restatement, Torts s. 340.
In view of the conclusions reached, it is unnecessary to consider defendant's other objections to the jury's verdict. In deciding this case it has been assumed that the plaintiff was injured on property owned or controlled by the defendant.
Judgment for the defendant.
All concurred.