Summary
In Maxfield v. Maxfield, 102 N.H. 101, 151 A.2d 226 (1959), we extended this doctrine to a plaintiff who was injured in an attempt to rescue her car, which was parked next to the defendant's burning barn.
Summary of this case from Macie v. HelmsOpinion
No. 4725.
Argued April 7, 1959.
Decided May 21, 1959.
1. The sole duty owed a gratuitous licensee by the owners of property relating to the condition of the premises is to warn such licensee of the dangers which are known to the property owners and not likely to be discovered by the licensee.
2. Hence the defendants owed no duty to warn the plaintiff licensee of the perils of butternuts accumulated on the ground and the danger of falling on them in the darkness where these facts were as well known to the plaintiff as the defendants.
3. However where the plaintiff licensee alleged that she sustained personal injury in an attempt to rescue her motor vehicle threatened by fire resulting from the negligent conduct of the defendants in causing oily rags to accumulate in a barn adjacent to the house where plaintiff was invited to stay and that the defendants alone were aware of the danger involved but failed to warn her thereof, such conduct could be found to be a substantial factor in causing the plaintiff's injuries and the issue of the defendants' negligence was for the jury.
4. The fact that it could be found that the immediate and contributing cause of plaintiff's injuries was her fall on butternuts over which she had to pass to rescue her motor vehicle and that she was as well aware as the defendants of their presence does not relieve the defendants from liability for their negligence in causing the fire.
5. Nor is it a defense to such action that the defendants may not have been able to foresee the exact manner in which plaintiff's injury might occur.
CASE, for negligence for personal injuries sustained by the plaintiff as a result of a fall on the defendants' premises. The defendants' motion for a nonsuit upon the plaintiff's written opening statement was granted, and the plaintiff excepted.
The material portions of the statement were as follows: The plaintiff, who was 65 years of age, is the mother of the defendant Henry S. Maxfield, whose wife is the defendant Elizabeth B. Maxfield. For some time prior to and including the date of the accident, which was on October 13, 1956, the defendants owned jointly a one-family homestead in Wolfeboro, consisting of a house, a barn nearby, a driveway and a parking place adjacent to the barn. The pathway to the entrance to the house for persons using the parking lot "crosses under a butternut tree under which the defendants . . . negligently permitted a great many butternuts to accumulate upon the ground on said pathway so as to create a risk to persons using said pathway to slip thereon." The pathway was owned and used by the defendants and under their control. On October 12, 1956, and the following day, the area under the butternut tree was and for several weeks had been in a "dangerous condition."
On Friday, October 12, the plaintiff drove from her home in Cambridge, Massachusetts, to see the fall foliage and also to see her son Henry. She arrived at the defendants' home in daylight that same day and noticed that there were butternuts on the path and in the area lying between the door to the house and the place where visitors' cars were parked. She left her car in the parking area next to the defendants' barn and at this time she told her son, who came to meet her, that the butternuts were dangerous and he should have them removed. He replied that he knew they were dangerous and that he planned to remove them.
The plaintiff spent that night at the defendants' home at their request. The next day she engaged a room at an inn in Wolfeboro and then proceeded to tour the country-side to view the foliage. Returning in the evening, she went to the defendants' home at their invitation to make a call. She planned to return to the inn for the night and then the next day go on to Cambridge.
At about 11:15 an auto horn was heard, and upon going out to see what was the matter, they discovered the barn was afire. The defendant Henry said to the plaintiff: "Go get your car out of the way!" She rushed out to do so, slipped on the butternuts and fell, receiving the injuries of which she complains. On previous occasions she had visited the defendants, but never when butternuts were on the ground. On these other occasions she had noticed that there was an operating outside light on the house to light the approach to the entrance. At the time of the accident this light was not working. For several weeks before the fire, the defendants knew this and were aware that it created a dangerous situation.
The fire in the barn was caused by an accumulation of oily rags which the defendants had put in trash barrels inside the barn from time to time, up to and including the day of the fire. The defendants "at some time in their lives were aware that an accumulation of oily rags causes spontaneous combustion."
The plaintiff then alleged in summary that: "The defendants were negligent in (a) depositing said oily rags in the trash barrels on October 13, 1956, (b) in accumulating oily rags in said barrels, (c) in placing said oily rags in said barrels in said barn." The existence of the rags was unknown to the plaintiff. The defendants also were aware of the danger of the butternuts, and they failed warn the plaintiff that the outside light was not working. At the time of the fire they failed to warn the plaintiff "of the perils of the darkness in view of the conditions then existing," and in addition to their failure to warn her of the butternuts, they further "failed to do so in view of the new conditions existing at 11:15 p.m. on October 13, 1956." They also neglected at the time of the fire to exercise reasonable care to see that she was aware of the new dangers, and they failed at any time to warn her of the dangers of the oily rag accumulation "and placement thereof."
Reserved and transferred by Grimes, J.
James J. Kalled and Philip J. Ganem (Mr. Kalled orally), for the plaintiff.
Elliott U. Wyman for the defendants.
The question before us is whether the defendants, owners and occupiers of the premises, may be found liable in the circumstances here to the plaintiff, who was there at their invitation as a social guest, or what is known as a gratuitous licensee. Restatement, Torts, s. 331; Sandwell v. Elliott Hospital, 92 N.H. 41, 44. The law is well established here and, we believe, by the better authorities elsewhere, that in these circumstances the general rule is that the only duty owed the plaintiff by the defendants relative to the condition of the premises was to use reasonable care to warn her of dangers which they knew about and which were likely to be undiscovered by her. Mitchell v. Legarsky, 95 N.H. 214, 216; Restatement, Torts, s. 342, s. 343, comment a.
The plaintiff concedes that she was aware of the presence of the butternuts and the danger they created, but seeks to avoid the consequences of this on several grounds. The first is that the defendants were negligent in failing to remove the butternuts "after the license was first extended to the plaintiff." We cannot see that the invitation to the plaintiff to return on the night of the 13th in any way affects the legal consequences. She remained a gratuitous licensee, and she still knew of the butternuts and the danger they caused. Nor do we believe the failure to repair the outside light or to warn the plaintiff that it was not working is significant. The darkness was as obvious to her as to the defendants, and there was no duty on their part to warn her of the "added" danger of running in the dark over ground strewn with butternuts, because whatever extra risk this involved, she knew as well as they. Neither the existence of these facts nor the combinations of them sustains the plaintiff's cause. In the case of Nickerson v. Association, 96 N.H. 482, cited in her brief, the injured party was justifiably ignorant of the factor which caused the peril, and the situation is thus distinguishable from the present one.
It follows that the plaintiff has no cause of action against the defendants because of any alleged negligent failure to remove the butternuts, repair the light, or to warn her of any dangers arising thereby. Cook v. Company, 95 N.H. 397, 399, and authorities cited.
However, her claim that the defendants negligently caused a fire which she says resulted in her injury, rests on a different footing. In the light of the facts alleged in the plaintiff's opening statement, which are to be taken as though the evidence had been introduced for the purpose of this case (Charpentier v. Company, 91 N.H. 38, 40), it appears clear that reasonable persons could find the defendants negligent in throwing oily rags into the barrels and allowing them to accumulate until they caught fire. It is a matter of common knowledge, which at some time had been shared by the defendants, that such conduct is dangerous. The plaintiff, on the other hand, was justifiably unaware of this danger and the defendants owed her a duty to protect her against damage to her person or property arising from it. Restatement, Torts, s. 342. The flaming waste in the barrels in turn set the barn afire, and this imperiled the plaintiff's automobile parked nearby. Her attempt to rescue her own property was natural and foreseeable and the authorities are in favor of imposing liability for injuries suffered in such situations. Annos. 64 A.L.R. 515; 42 A.L.R. (2d) 494. The case of Glines v. Railroad, 94 N.H. 299, is not authority to the contrary. There the plaintiff, a volunteer, was injured in trying to rescue the property of a third person. However the opinion expressly states (p. 302): "We recognize that the authorities permit recovery under similar circumstances when the plaintiff is not regarded as a mere volunteer because of a direct interest by reason of ownership or control of the property threatened by the defendant's negligence."
The defendants attempt to escape the consequences of this rule on the grounds that the butternuts upon which the plaintiff slipped and fell were the sole proximate or legal cause of her injury and that the "cause of the fire was wholly immaterial." It has been authoritatively stated that negligent conduct is a proximate or legal cause of harm, if the actor's conduct is "a substantial factor in bringing about the harm" and if no rule of law relieves the actor "from liability because of the manner in which his negligence has resulted in the harm." Restatement, Torts, s. 431(a), (b). Applying this test to the present case, we believe it plain that reasonable persons could find that the fire which caused the plaintiff to dash out in the darkness to save her own property was a substantial factor in bringing about her injury. Her reaction, as previously pointed out, was natural and foreseeable, and there was nothing extraordinary in the fact that such a fire as this, findably carelessly caused and blazing up in the night, should have resulted in personal injury to a guest. The defendants' negligence continued up to the moment the fire broke out, and the immediate result of it was to send the plaintiff dashing out in the darkness to save her property. The accident occurred in close proximity to the fire, in both time and space. In short, the case presents the essential elements decisive in determining whether the defendants' negligence was a substantial factor in causing the plaintiff's harm. Restatement, Torts, s. 433.
If it could be found also that the butternuts were a contributing cause, this would not relieve the defendants from liability. Prichard v. Boscawen, 78 N.H. 131, 132; Wilson v. Bank, 95 N.H. 113, 115; Restatement, Torts, s. 432. Nor would the fact that the defendants might not have been able to foresee the exact manner in which her injury might occur, afford them a defense. Nickerson v. Association, 96 N.H. 482, 484; Langevin v. Company, 81 N.H. 446, 447, 448. In such situations as in this case, we have: consistently held the question of the defendants' liability is for the jury. Prichard v. Boscawen, supra, 133; Derosier v. Company, 81 N.H. 451, 461; Hurd v. Railroad, 100 N.H. 404, 408. This, we believe, represents the majority and better view. Nugent v. Marshall, 222 F.2d 604, 611; Restatement, Torts, s. 432 (2); Prosser on Torts, (2d ed.) 221. The order is
Exception sustained.
All concurred.