Summary
holding that the plaintiff, who was helping his employer install a dimmer switch in the employer's truck on the defendant's property, was a licensee when he was injured, because, even though he had gone to the defendant's car repair shop with his employer to purchase the switch, and was therefore an invitee at that time, his status changed once he and his employer decided to install the switch themselves when they learned that the mechanics would not have time to install it until the next day
Summary of this case from Markle v. Hacienda Mexican RestaurantOpinion
No. 41360.
February 1, 1960.
1. Negligence — possessor of premises — extent of duty to business invitee coextensive with invitation.
Possessors of premises have duty to use reasonable care with reference to invitees on their business property which duty is coextensive with the invitation, and inviter's duty and corresponding liability for breach of duty are measured and limited by nature of invitation held out to invitee and if the latter goes beyond bounds of his invitation he loses status of invitee and rights which accompany that state and becomes a licensee.
2. Negligence — possessor of premises — business invitee who went beyond bounds of garage owner's invitation lost status of invitee and rights which accompanied that state and became licensee, so that garage owner would only be liable for willfully or wantonly injuring him.
Where plaintiff who had purchased a dimmer switch for pickup truck asked garage foreman if mechanic could install the switch, and upon being advised that garage mechanic did not have time to fix it plaintiff obtained consent for plaintiff and his employer to install the switch themselves, the status of plaintiff changed from that of a business invitee to a licensee so that garage owner would only be liable for willfully or wantonly injuring the plaintiff.
3. Negligence — possessor of premises — measure of duty to licensee.
The measure of duty of a possessor of premises to a licensee is not to willfully or wantonly injure him and something more is required than mere inadvertence or lack of attention and there must be a more or less extreme departure from ordinary standards of care and conduct must differ in quality, as well as in degree, from ordinary negligence, and must involve a conscious disregard of a known, serious danger.
4. Negligence — possessor of premises — duty to licensee — evidence — insufficient for jury on issue whether garage owner or employee willfully or wantonly injured plaintiff.
In action against garage owner and his employee for injuries to plaintiff who when given permission to install dimmer switch on pickup truck on garage premises with knowledge that truck was parked close to a frequently used garage driveway stuck his feet out onto driveway for six to 12 inches and was in that position for about five minutes when employee driving an automobile into garage blew horn but did not see plaintiff's feet and injured him, evidence was insufficient for jury on issue whether garage owner or employee willfully or wantonly injured plaintiff.
Headnotes as approved by Ethridge, J.
APPEAL from the Circuit Court of Jones County; LUNSFORD CASEY, Judge.
Quitman Ross, E.K. Collins, Laurel, for appellants.
I. Appellant was at the time of his injury an invitee, express and implied, on the premises of the appellee, Ford. Brotherhood of Railway Trainmen v. McLemore, 228 Miss. 579, 89 So.2d 629; Brown-Miller Co. v. Howell, 224 Miss. 136, 79 So.2d 818; Cole v. Tullos, 228 Miss. 815, 90 So.2d 32; Mock v. Natchez Garden Club, 230 Miss. 377, 92 So.2d 562; Nowell v. Harris, 219 Miss. 363, 68 So.2d 464; 38 Am. Jur., Negligence, Sec. 104; 65 C.J.S., Sec. 43(2) p. 509.
II. The act of the appellee, Pitts, which produced injury was either willful or wanton. Covington v. Carley, 197 Miss. 535, 19 So.2d 817; Weir v. Lukes, 13 Cal.App.2d 312, 56 P.2d 987; 38 Am. Jur., Negligence, Sec. 48.
Melvin, Melvin Melvin, Laurel, for appellees.
I. At the time of the injury, the status of the appellant, on the premises of the appellees, was that of a bare licensee. Flatley v. Acme Garage, 196 Iowa 82, 194 N.W. 180; Kelly v. Sportsmen's Speedway, Inc., 224 Miss. 632, 80 So.2d 785; Murry Chevrolet Co. v. Cotten, 169 Miss. 521, 152 So. 657; Robertson v. Yazoo M.V.R. Co., 152 Miss. 333, 118 So. 181; 38 Am. Jur., Secs. 100, 101 pp. 761, 762.
II. Did the acts and conduct of the appellees result in an injury to the appellant, and was such conduct willful or wanton? 38 Am. Jur., Sec. 48 p. 693.
III. Appellant knew of the danger and voluntarily assumed the risk of injury. McDonald v. Wilmut Gas Oil Co., 180 Miss. 350, 176 So. 395; Runnels v. Dixie Drive-It-Yourself System Jackson Co., Inc., 220 Miss. 678, 71 So.2d 453; Saxton v. Rose, 201 Miss. 814, 29 So.2d 646; 38 Am. Jur., Secs. 171, 173 pp. 845, 847.
This case involves a tort claim by one who entered premises as a business invitee, but whose status changed thereafter, we think, to that of a licensee, by using the premises for purposes not included in his invitation. The Circuit Court of Jones County, Second Judicial District, gave a peremptory instruction for the defendants, appellees here. We affirm that decision.
Appellant Roy Dry worked for Brown hauling turnip greens. Upon returning to Laurel, they purchased a dimmer switch for Brown's pickup truck, and drove to a garage owned by appellee Ford. With the truck in the garage's entrance, they asked the foreman if a mechanic could install the dimmer switch. Since the time was 4:45 P.M., the foreman advised Brown that they did not have time that day to fix it. Brown asked him if it would be all right for them to install the switch themselves, and he "said it would." Brown backed the car out of the entrance and pulled it to the right of the door, about 1 1/2 feet from the driveway into the garage. Dry got under Brown's truck to hand the switch up to Brown. His feet were sticking out from under the truck about two feet, so they were partly upon the driveway. At that time defendant Pitts, a mechanic, was driving a car from the lot into the garage for the night. He drove up to the entrance, backed his car to get a better angle, and while pulling into the garage ran over and injured Dry's foot.
When plaintiff entered the business premises of defendants, he entered as an implied business invitee. However, the undisputed evidence shows that the implied invitation terminated when defendants' foreman advised plaintiff and his employer Brown that they could not install the dimmer switch that day, and when Brown asked for and received permission for him and Dry to install the switch themselves on the premises of the motor company. Plaintiff was acting thereafter solely for his own benefit and convenience. (Hn 1) Possessors of premises have the duty to use reasonable care with reference to invitees on their business property. That duty is coextensive with the invitation. An inviter's duty and corresponding liability for breach of duty are measured and limited by the nature of the invitation held out to the invitee. (Hn 2) If the latter goes beyond the bounds of his invitation, as Dry did here, he loses the status of invitee and the rights which accompany that state. Dry became a licensee. 65 C.J.S., Negligence, Secs. 46, 48, 33, 23b; 38 Am. Jur., Negligence, Secs. 131, 132, 99-101; Kelly v. Sportsmen's Park, Inc., 224 Miss. 632, 80 So.2d 785 (1955).
(Hn 3) The undisputed evidence for plaintiff would not warrant a jury in finding that appellees willfully or wantonly injured him. This is the recognized measure of the duty of a possessor of premises to a licensee. Bishop v. Stewart, 234 Miss. 409, 106 So.2d 899 (1958). Something more is required than mere inadvertence or lack of attention. There must be a more or less extreme departure from ordinary standards of care. The conduct must differ in quality, as well as in degree, from ordinary negligence, and must involve a conscious disregard of a known, serious danger. Prosser, Torts (2d Ed. 1955), Sec. 77. (Hn 4) Appellant's testimony reflects that he knew the truck was parked close to a frequently used driveway into the garage, and with that knowledge he stuck his feet out onto the driveway for six to twelve inches. He had been under the truck and in that position for about five minutes. Pitts, driving the car, blew his horn, but did not see plaintiff's feet on the edge of the driveway. Assuredly under these circumstances a jury would not be warranted in finding that defendants willfully or wantonly injured this licensee on their premises.
Affirmed.
All Justices concur, except Roberds, J., who took no part.